STREET   WORK    LAWS 


O  F     THE 


STATE    OF    CALIFORNIA 


A/VINOT  ATED 


By    FRANK    G.    FI/NLAgSON,    LL  B. 

Of   the    Lcs    Ange  es   Bar 


Published     by 

en  AS.  w.  PALM  eo, 

Los    Angeles,    Cal. 


1893. 


Entered  according  to  Act  of  Congress,  in  the  year  1893, 

BY  FRANK  G.  FINLAYSON 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


PREFACE 


The  street  laws  peculiar  to  the  state  of  California  are 
those  statutory  enactments  which  provide  for  improvements 
upon  existing  streets — streets  opened  or  dedicated  to  public 
use;  also,  those  enactments  which  provide  for  the  opening, 
widening,  extending  or  closing  up  of  streets,  in  whole  or  in 
part.  To  many  these  street  laws  are  terra  incognito.  They, 
are  sui  generis,  covering  a  special  territory  by  themselves 
quite  outside  of  the  common  and  ordinary  domain  of  the 
general  and  usual  practice.  Heretofore  these  laws  have 
constituted  a  branch  of  the  practice  so  specialized  that  it 
has  been  explored  by  but  few  members  of  the  profession; 
nevertheless,  it  is  one  of  the  most  important  branches  in 
the  whole  wide  range  of  jurisprudence.  Municipal  corpo- 
rations are  little  more  than  public  improvement  corporations 
on  a  large  scale;  and,  as  the  present  tendency  seems  to  be 
in  the  direction  of  a  still  further  centralization  of  power  in 
the  municipalities  of  the  country,  with  the  investiture  of 
still  greater  powers  over  public  improvement  in  the  muni- 
cipal authorities,  confiding  to  their  care  the  conduct  of 
many  enterprises  which  have  heretofore  usually  been  in  the 
hands  of  private  individuals,  it  follows  that  any  branch  of 
the  law  which  deals  with  the  exercise  of  these  powers  is  of 
great  and  growing  importance,  both  to  the  profession  and 
the  laity.  Cities  and  towns  are  rapidly  springing  up  in 
this  empire  common  wealth,  and  streets  are  as  rapidly  being 
opened  up  and  improved.  Hence  the  necessity  for  some 
book  which  shall  facilitate  the  researches  of  those  whose 
business  it  is  to  study  these  street  laws  and  assist  in  their 
administration.  With  this  end  in  view  the  author  has  pre- 
pared this  book  for  publication,  and  will  feel  himself  amply 
repaid  for  his  labors  if  he  has  succeeded  in  bringing 
together  between  the  covers  of  one  book  such  material  upon 
the  subject  of  the  street  laws  of  this  state  as  will  serve  to 
simplify  the  subject  and  render  a  comprehensive  knowledge 
thereof  easy  of  attainment. 

One  reason  why  the  realm  covered  by  this  special  depart- 
ment has  hitherto  remained  unfamiliar  to  many,  is  that  the 
statutes  themselves  upon  the  subject  of  street  work,  and  the 
many  amendatory  acts,  have  been  scattered  through  numer- 


IV  STREET    WORK    LAW PREFACE 

ous  volumes  of  our  statute  books.  Prior  to  the  adoption  of 
the  new  constitution,  these  statutory  provisions  consisted  of 
a  heterogeneous  mass  scattered  through  the  charters  of  the 
various  municipalities  of  the  state,  and  found  in  special  and 
local  laws.  Therefore  any  general  systemization  of  the  sub- 
ject of  street  laws  under  the  old  constitution  was  practically 
impossible,  since  each  city  had  a  special  and  separate  sys- 
tem of  its  own.  Under  the  new  constitution, however,  gen- 
eral laws  upon  the  subject  have  been  passed,  operative 
throughout  the  length  and  breadth  of  the  state,  and  super- 
seding all  special  laws  in  conflict  therewith.  It  is  therefore 
possible  now  to  reduce  these  general  laws  to  some  system, 
and  present  them  as  they  exist  at  the  present  time,  i.  e.,  as 
amended  up  to  date.  The  mere  presentation,  therefore,  of 
the  naked  statutes  in  force  to-day,  will  serve  to  remove 
much  doubt  that  would  otherwise  harass  the  mind  of  the 
busy  practitioner,  who,  after  exploring  the  statute  books  for 
hours  or  even  days,  might  still  doubt  whether  he  had  found 
all  the  statutory  enactments  upon  the  subject,  or  whether 
some  amendment  had  escaped  his  search  or  not.  The 
author  has  therefore  set  forth  in  full  all  the  general  street 
laws  of  the  state  now  in  force  in  every  municipality,  as  the 
same  have  been  amended  up  to  date,  and  has  also  referred 
to  each  and  every  amendment  which  has  been  made  to 
each  section  of  the  acts  from  the  time  of  the  original  enact- 
ment. Thus,  any  person  seeking  to  know  what  the  statute 
provisions  are  at  present,  will  find  them  set  forth  in  full. 
Should  he  desire  to  know  what  the  statute  provisions  have 
been  at  any  time  intermediate,  between  the  time  of  the 
original  enactment  and  the  present  date,  he  has  but  to  turn 
to  the  book  and  page  of  the  statutes  containing  the  original 
enactment,  or  any  subsequent  and  intermediate  amenda- 
tory act. 

Another,  and  perhaps  still  less  surmountable  obstacle 
lying  in  the  path" leading  to  a  comprehensive  knowledge  of 
these  street  laws  is  the  fact  that,  even  when  the  practitioner 
has  unearthed  from  the  statute  books  all  the  enactments  in 
force  upon  the  subject  of  street  work  or  street  improve- 
ment, and  has  carefully  studied  their  provisions,  he  must 
still,  in  the  absence  of  an  authoritative  construction  by  the 
Supreme  Court,  remain  in  doubt  as  to  the  correct  interpret- 
ation of  many  of  the  provisions;  or  he  may  even  entertain  a 
fixed,  but  mistaken,  opinion  as  to  the  true  meaning  or  scope 
of  a  provision,  without  being  aware  of  his  mistake.  A  care- 
ful study  of  the  decisions  which  have  been  rendered  by  our 
Supreme  Court  in  cases  calling  for  a  construction  of  these, 
and  of  similar  prior  street  work  laws,  will  undoubtedly  do 


PREFACE  V 

much  to  illumine  the  doubtful  provisions  of  these  enact- 
ments, and  dissipate  the  mists  that  obscure  their  true 
meaning. 

Therefore,  by  publishing  in  book  form  the  statutes  now 
in  force,  relative  to  street  work,  and  annotating  the  sections 
with  notes  and  excerpts  from  the  decisions  of  our  Supreme 
Court  construing  these  or  similar  provisions,  the  reader, 
in  a  comparatively  short  time,  may  so  far  master  this 
whole  subject  as  to  equip  himself  with  a  comprehensive 
knowledge  of  these  laws. 

The  aim  and  object  of  this  book  is,  therefore,  to  present 
together  in  one  book  all  the  general  statutory  enactments 
upon  the  subject  of  street  work,  together  with  such  annota- 
tions and  citations  from  the  decisions  of  our  Supreme 
Court  as  will  serve  to  interpret  the  true  meaning  of  these 
statutes,  and  in  doing  so  the  author  has  endeavored 
to  cite  every  case  upon  this  subject  that  has  ever  been 
decided  by  the  Supreme  Court  of  this  state. 

It  is  not  the  purpose  of  this  book  to  consider  general  prin- 
ciples, either  of  street  law  in  general  or  of  street 
assessments.  These  general  principles  may  readily 
be  found  in  works  upon  streets,  roads  and  highways,  and 
in  works  upon  assessments  and  taxation.  The  sole  aim  of 
the  author  is  to  present  to  the  profession,  and  to  those 
interested  therein,  the  street  law  of  California  as  the  same 
is  found  in  the  general  statutory  enactments  of  this  state 
upon  the  subject  of  street  work  and  street  improvement, 
and  to  exemplify  the  meaning  of  these  statutory  provisions 
by  cases  cited  from  the  decisions  of  our  own  courts.  The 
questions  arising  out  of  these  statutes  are  principally  ques- 
tions of  interpretation  and  construction,  and  it  would  be 
idle,  therefore,  to  cite  the  decisions  of  the  courts  of  other 
states  whose  statutory  provisions  are  unlike  our  own. 
Nevertheless,  wherever  the  author  has  thought  there  might 
be  any  question  as  to  the  constitutionality  of  any  of  these 
statutes  or  of  any  of  the  provisions  thereof,  that  has  not 
been  directly  settled  by  the  decisions  of  our  own  Supreme 
Court,  he  has  stated  the  questions  that  have  thus 
suggested  themselves  to  his  mind,  and  has  in  this  connec- 
tion, cited  some  few  decisions  by  the  highest  courts  of 
other  states.  However,  as  the  questions  which  these  stat- 
utes give  rise  to  are,  in  the  main,  questions  of  interpreta- 
tion or  construction,  it  is  impossible  to  foresee,  how  many 
of  the  questions  arising  out  of  these  street  laws,  will  ulti- 
mately be  settled  by  the  Supreme  Court.  Nevertheless,  the 
author  has  everywhere  endeavored  to  reach  a  correct  inter- 
pretation, and  to  extract  from  U)je-«e«ees-a-.statement  of  gen- 

.^Xm&fcSE  LIBR^ft^s. 

f*  OF  THE  Y        \ 


VI  STREET  WORK  LAW PREFACE 

eral  doctrines  which  shall  aid  in  the  solution  of  future 
questions,  and  has  not  hesitated  to  express  his  own  views 
and  opinions,  but  such  speculations  and  arguments  are 
always  plainly  indicated  and  represented  in  their  real  char- 
acter, so  that  the  reader  need  never  confound  them  with 
the  results  of  actual  judicial  decision,  and  be  thus  led  to 
accept  as  settled  law  what  is  only  a  personal  conviction  or 
suggestion  of  the  author. 

Los  Angeles,  Cal.,  December  1,  1893. 

FRANK  G.  FINLAYSOX. 


TABLE    OF   CONTENTS. 
INTRODUCTION   xxi. 

Classification  of  the  street  work  laws xxi 

History  of  the  street  work  laws xxm 

History  of  the  street  improvement  acts  in  San  Francisco 

prior  to  the  present  constitution xxiv 

History  of  the  street  improvement  acts  since  the  adoption 

of  the  present  constitution xxix 

The  Vroonian  act  of  March  18,  1885 xxxvii 

Outline  of  the  provisions  of  the  Vrooman  act,  as  amended  XLIV 

The  Bond  act  of  February  27,  1893 XLVII 

The  Tree  Planting,  or  shade  tree  act XLVII 

The  Sanitary  District  act XLVIII 

The  Street  Opening  act  of  March  6,  1889 XLVIII 

History  cf  street  opening  acts XLIX 

The  Street  Opening  act  of  March  23,  1893 LI 

The  Municipal  Indebtedness  act  of  March  19,  1889 LII 

GENERAL  STREET  IMPROVEMENT  ACT  OF  MARCH 
18,  1885.     (The  Vrooman  Act.)  1-216 

SI-KTION    1 1-5 

1.  Scope  of  section  1 1-2 

2.  Meaning  of  the  word  "Street." 2-5 

3.  Dedication 5 

SECTION  2 5-8 

1.  Scope  of  section  2 6-7 

2.  Grading 7-8 

SECTION  3 8-37 

1.  Jurisdiction 10-18 

2.  Ten  jurisdictional  prerequisites  to  valid  contract  18-19 

3.  Resolution  of  intention 19-20 

4.  Posting  and  publishing  resolution  of  intention. .  20-24 

5.  Posting  and  publishing  notices  of  passage  of 

resolution  of  intention 24-25 

6.  Order  for  the  work  to  be  done 26-27 

7.  Publication  of  order  to  do  work 27-28 

8.  Petition  of  remonstrance 28-30 

9.  Written  objections 28-33 

10.  District  assessments 33-34 

11.  Sewer  construction  and  district  assessments. .  . .  35-37 
SECTION  4 37-42 

1.  Petition  of  owners  for  work  to  be  done 37 

2.  Effect  of  petition— decision  by  Judge  Shaw ....  38-42 
SECTION  5 42-61 

1.  Jurisdictional  prerequisites  to  valid  contract. ...  44 

2.  Posting  and   publishing  notices  inviting  sealed 

proposals 44-48 

3.  Consideration  of  sealed  proposals  by  council. . . . 

4.  Award  of  contract 

5.  Posting  and  publishing  notices  of  award. 48-49 

6.  Execution  of  written  contract  by  superinten- 

dent of  streets 49-52 

7.  Contents  of  contract 52-55 

8.  Fraudulent  side  agreement 55-57 

9.  Other  requirements  of  section  5 57 

10.    Ke-advertisements  for  proposals  or  bids 57-58 


VIII 


STREET    WORK   LAW CONTENTS 


11.  Procedure     on    re-advertising    and     re-letting 

contract 58-59 

12.  Lot  owners  taking  contract 59 

13.  Bond  accompanying  contract 59-60 

14.  Assignment  of  contract 60-61 

SECTION   6 61-63 

1.  Contents  of  written  contract 62 

2.  Powers  of  superintendent  of  streets 62-63 

4.     Extension  of  time  to  complete  contract 62-63 

SUCTION   7 64-84 

1.  Improvement  of  tracks,  etc,  by    railway  com- 

panies   67-69 

2.  Mode  of  assessment  provided  by  act 69-70 

3.  Front-foot    mode   of    assessment  constitutional  70-74 

4.  General  principles  of  street  assessments 74-79 

(a)  Legislature        cannot       directly      exercise 

power  of  assessment 74 

(/>)  Owner  not  personally  liable 74 

(c)  Not  an  exercise  of  power  of  eminent  domain  74 

(d)  Contract      not      affected     by     subsequent 

changes  in  the  law 74-75 

(«)  Property  owner  cannot  set  up  counter  claim 
(  /')  Sale  for  taxes  extinguishes   assessment  lien  75-76 
(g)  Public  property  exempt  from  street  assess- 
ment    76 

(/i)  Assessment      need    not  be     presented     to 

administrator 76 

( i )  Can  only   be   made  pursuant  to    term  of 

statute 76 

(j)  Avoid   assessment  cannot  be   validated  by 

ratification 76-78 

(&)  Severable    assessments    may    be     severed 

and  recovery  had  on  valid  part 78-79 

(0  When     not     severable,     if    part    is    void, 

whole  is  void 79 

(TO)  Each  lot  is  independently  liable 79-80 

5.  Subdivision  2  of  section  7,  front  foot  plan  of 

assessment  is  the  general  rule 80-81 

6.  Subdivision  3  of  section  7,  assessment  for  work 

on  main  street  crossings 81-82 

7.  Subdivision  4  of  section  7,  assessments  on  ter- 

minations and  opposite  terminations 82-83 

8.  Subdivision  8  of  section  7,  assessment  for  work 

on  one  side  of  center  line 83-84 

9.  Subdivision  9  of  section  7 84 

SECTION  8 84-99 

1.  Form  of  assessment,  assessment  roll 85 

2.  Contract  to  be  fulfilled  to  satisfaction  of  super- 

intendent of  streets 86 

3.  Assessment  made  after  fulfillment  of  contract. .  87-88 

4.  Assessments  to  be  made  by  superintendent  in 

conformity  with  section  7 88-90 

5.  Form  of  assessment  roll  and  how  made ,  90-94 

(«)  To  true  owner  if  known,  if  not,  to  unknown 

owner 90-92 

(ft)  Attestation  of  assessment 92 

(c)  Time  in  which  assessment  or  re-assessment 

may  be  made 92 

(cZ)  Description  of  property 92-94 

6.  Remedy  for  irregularities  in  assessment 94-98 

(a)  Appeal  to  council    by  lot  owners 94-97 

(b)  Appeal  to  council   by  contractor 97-98 

7.  Diagram 98-99 


V 

UNIVERSITY 


SECTION  0  ..............................................     99-107 

1.  Jurisdictional  prerequisites  to  valid  assessment 

liens  ....................................   100-101 

2.  Warrant,  signing  and  countersigning  ..........   101-102 

2.     Recording  warrant,  assessment,  etc  ............    102-105 

4.  Effect  of  recording  warrant,  assessment,  etc.  .  ,  .  105 

5.  Delivery  of   warrant,  assessment,   etc.,  to  con- 

tractor ...................................  105-106 

6.  Re-assessment    after    judgment    adjudging    an 

assessment  illegal  .......................   106-107 

SECTION  10  .............................................   107-1  16 

1.  Prerequisites  to  right  of  action   on  assessment 

lien  .........  ,  ...........................  108 

2.  Demand  upon  persons  assessed  or  their  agents  .    108-110 

3.  Demand  on  premises  ..........................   1  10-1  1  2 

4.  By  whom  demand  made  .......................  112 

5.  Amount  of  demand  ............................   112-113 

6.  Contractor's  return  ...........................   113-114 

7.  Return  as  evidence  of  demand  .................  114 

8.  Recording  return  .........  ....................   114-116 

9.  Interest  .......................................   115-116 

SECTION  11  .............................................    116-141 

1.  Difference  between  "appeal"  and   "petition  of 

remonstrance"  ...........................   117-118 

2.  Principles   governing   appeal   to   council   under 

prior  street  improvement  acts  ............    119-128 

3.  Meaning  of  term,  "Jurisdictional  requirements" 

127-128;  132-136 

4.  Principles  governing  appeal  under  Yrooman  act  128-130 

5.  Cases  in  which  appeal  to  council  has  been  held 

to  be  the  exclusive  remedy  ..............   130-138 

6.  Cases  in  which  it  has  been  held'   that  appeal  to 

council  affords  no  remedy  ...............  138-140 

7.  Appeal  by  contractor  ..........................   140-141 

8.  Unsuccessful  appeal  no  estoppel  ...............  141 

9.  Council  cannot  dismiss  appeal  .................  141 

10.    Practice  on  appeal  to  council  ...................  141 

SECTION  12  .............................................   141-162 

1.  Actions  on  assessment  lien  —  General  principles 

of  procedure  .............................  143-146 

2.  Parties  ........................................  146-148 

(a)  Plaintiffs  .................................  14(5 

(fc)    Defendants  ...............................   146-148 

3.  Pleadings,  what  statute  governs  ......  ..........   148-151 

4.  Complaint  —  General  principles  of  pleading    in 

action  on  assessment  .....................   151-154 

5.  Some  special  rules  applicable  to  complaints  .....   154-155 

6.  Answer  —  Defenses  .............................   1  55-157 

7.  Evidence  .....................................   157-160 

8.  Decree  ........................................   160-162 

9.  Personal  judgment  void  .......................  161 

SECTION  12}£  ...........................................  162 

Proportional  assessment  for  two  blocks  or  more 

before  completion  of  work  ................  162 

SECTION  13  ........................................  ,  ____   162-174 

1.  Scope  of  section  13  ............................   163-164 

2.  "Repairs"  and  "reconstructions"  —  Prerequisites 

to  imposition  of  cost  of,  on  lot  owner  .....   164-166 

3.  No  primary  duty  resting  on  lot  owners  to  repair 

or  reconstruct  ............................  166-169 

4.  Constitutionality  of  section  13  .................  169-174 

SECTION  14  ..............  '.  ..............................  174 

1.  Contractor's  suit  for  cost  of  repairs.  ...  .........  174 

2.  Record  and  lien  of  certificate..  174 


STREET    WORK  LAW CONTENTS 

SECTION  15 174 

Additional  penalties  may  be  prescribed  for  neg- 
lect to  repair 174 

SECTION  16 174-176 

1.  Who  is  "owner"  for  purpose  of  the  act.  Tenant's 

possession 1 74 

2.  Who   "proper"   and  who  "necessary"  parties 

defendant ." 174-17<> 

SECTION  17 176 

Tenant  may  pay  assessment  or  redeem  after  sale, 

and  recoup  from  rents 176 

SECTION  18 1 76 

Street  superintendent's  records,  force  and  effect 

of 176 

SECTION  19 1 76 

Service  of  written  notice ;  verification ;  record . .  .  176 

SECTION  20 176-177 

Acceptance  of  street  by  city  council ;  kept  in  order 
thereafter  at  expense  of  city ;  partial  or 

conditional  acceptance 176 

SECTION  21 177 

Superintendent's    office — Cleaning    of    sewers — 

Expense 177 

SECTION  22 177 

Duties  of  superintendent — His  bonds — Penalties 

for  official  neglect 177 

SECTION  23 177-178. 

City  not  liable  for  damages  resulting  from  defects 

in  street — Who  are  liable 177-178- 

SECTION  24 178 

Certain  work  not  barrea  by  written  objections. . .  178. 

SECTION  25 179 

Repairing  and  watering  streets, — Cleaning  sew- 
ers— Contingent  fund — Work  of    re-grading 

etc.,  let   as   in  first  instance 179 

SECTION  26 179 

Council  may  order  all  or  any  part  of  the  cost  to 

be  paid  from  municipal  treasury 179 

PART  II  OF  VROOMAN  ACT.  179-187 

SECTION  27.  Extraordinary  modes  of  paying  for  sewer 

construction 179 

1.     Sewer  assessments 180-185- 

SECTION  28.  Special  election  for  incurring  indebtedness 

for  sewer   construction 185-186 

SECTION  29.  Bonds,  farm  of,  etc 186 

SECTION  30.  Bonds,  how  sold 186 

SECTION  31.  Bonds  may  be  sold  at  or  above  par  without 

notice 

SECTION  32.  Proceeds  of  sale  of  bonds 187 

SECTION  33.  Sewer    plans     and     specifications — Award — 

Rejecting    bids 187 

PAET  III  OF  VEOOMAN  ACT  188-190 
SECTION  34.  Miscellaneous    provisions   and   definition   of 

words,  etc 188-189 

SECTION  35.  Special  suparintenJent  of  construction 189 

SECTION  36.  Vrooman  act  of  1883   repealed 190 

SECTION  37.  When  act  takes  effect 190 

SECTIONS  38  to  53.    Relative   to  proceedings  to  change  an 

established    grade,     and    to    do    work    on 

altered  grade 191-216 

1.  Comments  upon  sections  38  to  53 192-208 

2.  Establishment  of  grade,  what  is 193 

3.  Constitutionality  of  sections  38  to  53 194-208 


,  CONTENTS,  XI 

4.     Purpose  of  sections  38  to  52;  damages  resulting 

from  change  of  grade  lines,  etc 199-204 

STREET  IMPROVEMENT  BOND  ACT,  OF  FEBRUARY 
27,     1893.    217-235. 

SECTION  1. 217 

1.  Contents  of  section  —  Meaning  of  certain  words 

and  phrases  used  in  the    act 217 

2.  Comments  upon  provisions  of  bond  act 217-220 

3.  Constitutionality  of  the  bond  act 220-226 

SECTION  2 226 

Contents  of  section — Estimates  by  city  engineer 
— Minimum  costof  work — Features  of  bonds 
— Payable  by  city  treasurer  from  a  fund — 
Payments  of  interest  and  upon  principal, 
both  by  coupons — Register 226 

SECTION  3 226 

Contents  of  section — Description  of  bonds  must 
be  in  the  resolution  of  intention,  resolution 
ordering  the  work,  resolution  of  award,  and 
in  all  notices — Notice  in  warrant 226 

SECTION  4 227 

Contents  of  section — Listing  unpaid  assessments 
of  $50,  or  over — Issuance  of  a  bond  for  each 
lot — Description  of  lot — Form  of  bond — 
Assessment  for  the  bond  is  first  lien  upon 
the  lot — Bond  is  payable  from  the  fund  of 
its  series — Its  term — Annual  payments  by 
coupons  upon  principal — Coupons  for  semi- 
annual  interest — Upon  defaul%  lot  may  be 
sold  as  for  taxes — Assessments  less  than  $50, 
not  bonded,  but  collected  otherwise — Lot 
owner  upon  notice  may  prevent  issuance  of 
bond  for  his  assessment — Bonds  payable  to 
party  or  order — Interest  coupons — First  lien 
on  the  lot — Conclusive  evidence  of  all  pro- 
ceedings up  to  the  listing 227-229 

SECTION  5 229 

Contents  of  section — Upon  any  default  in  pay- 
ment, bond  becomes  due  immediately,  if 
holder  so  demands — Lot  to  be  then  sold  as 
for  taxes  delinquent 229 

SECTION  6 230 

1.  Contents  of  section — Council    may    separately 

order  similar  street  work  upon  theexcepted 
R.  R.  portion  of  streets,  and  at 
cost  of  R.  R.  Co. — Notice — Refusal 
or  neglect  of  R.  R.  Co. — Duty  of  council 
in  such  case — R.  R.  Co.  may  do  its 
own  work  or  have  it  done — Proceed- 
ings when  R.  R.  Co.  prefers  not  to  do  its 
own  work — Bonds  to  be  issued  in  certain 
cases — When — Notices — Description  of  the  R 
R.  bond — Record — Sums — First  lien  on  all 
R.  R.  plant  and  franchise  except  as  against 
taxes — Protests  in  street  work  inapplicable 
here 230-231 

2.  Improvements  by  street  railways 231-234 

SECTION  7 234 

Contents  ot  section— City  treasurer  defined 234 

SECTION  8 235 

Contents  of  section— Repeal  of  bond  act  of  1891  235 

SECTION  9 235 

Contents  of  section — Act  takes  effect  on  passage  235 


XII  STREET  WORK  LAW CONSENTS.        , 

PLANT   AND  SHADE  TREE  ACT.     236-240 

SECTION  1.  Powers  of  council  to  plant  and  maintain  shade 

trees,  and  regulate  hedges 2  38 

SECTION  2.  Resolution    of  intention — Posting  of  notice — 

Publication  .'• 236 

SECTION  3.  Objection  by  owners  of  a  major  frontage 237 

SECTION  4.  Time  for  hearing  notice — Decision  upon  hear- 
ing— Bar — Proceedings  de  novo 237 

SECTION  5.  Posting  notice  with  specifications — Advertis- 
ing for  bids — Requisites  in  bids — Certified 
check —  Rejecting  bids —  Award —  Notice — 

Contract — Re-advertising — Reletting 237 

SECTION  6.  Bond — Justification    of  sureties — Payment  of 

incidental   expenses 238 

SECTION  7.  Duty  of  superintendent  of  streets 238 

SECTION  8.  Payments  by  installments 239 

SsjrtoN  9.  Assessment— Diagram — Warrant — Recording 

—Lien 2S9 

SECTION  10.  Collections 240 

SECTION  11.  Power  to  prohibit  certain  things  and  to  make 
other  regulations — Condemnation — Eradica- 
tion    240 

SECTION  12.  Replacement  and  care 240 

SECTION  13.  Act  applicable  after  vote  of  the  electors 240 

STREET    OPENING    ACT  OF   MARCH    6,    1889. 
241-271. 

SECTION  1,   211 

1.  Scope  of  section  1 — Powers  of  council  to  open 

streets,  etc 241 

2.  Outline  of  the  provisions  of  the  street  opening 

act  of  1889 241-243 

3.  Street  opening  act  does  not  provide  for  "improve- 

ments" upon  existing  streets 244-245 

4.  Constitutionality  of  street  opening  act  of  1889. .  .   246-250 

5.  Decisions  under' prior  street  opening  acts 250-254 

SECTION  2 254 

1.  Contents  oi  section  2 — Resolution  of  intention 

2.  The  resolution  must  specify  the  exterior  bound- 

aries  of   the  assessment  district 

SECTION  3 254 

Contents  of  section  3 — Notice  of  passage  of  reso- 
lution of  intention,  posted  and  published 

SECTION  4 254 

Contents  of  section  4 — Interested  persons  may 
file  objections  to  the  work  or  to  the  extent 
of  the  district 

SECTION  5 255 

Contents  of  section  5 — Decision  of  council  is 
final — When  jurisdiction  is  deemed  to  have 
been  acquired 

SECTION  6 255 

Contents  of  section  € — Order  of  work — Com- 
missioners— Compensation — Qualification — 
Removal  of  commissioners 

SECTION  7 258 

Contents  of  section  7 — Office  of  commissioners — 
Assistants — Incidental  expenses 

SECTION  8 256- 

Contents  of  section  8 — Incidental  expenses — 
Payments  for  property  taken  or  damaged, 
to  be  by  warrants 


CONTENTS.  XIII 

SECTION  9 256 

1 .  Contents  of  section  9 — Viewing  of  lands — E  xam- 

ination  of  witnesses — Assessments, how  made          256 

2.  Rules  by  which  commissioners  are  guided  in 

ascertaining    amount  of  damages,  and  in 
making  assessments 256-259 

SECTION  10 259 

Contents  of  section  10 — Commissioners'  report — 
Plat  of  assessment  district 

SECTION  11 259 

Contents  of  section  11 — What  report  must 
specify 

SECTION  12 260 

Contents  of  section  12— Assessments  to  unknown 
owners — Error  in  name  does  not  invalidate 

>N  ]:! 260 

Contents  of  section  13 — Publication  of  notice  of 
filing  report  and  plat 

SECTION  14 260 

Contents  of  section  14 — Objections  to  confirma- 
tion of  report — Hearing  of  objections 

SECTION  15 260 

Contents  of  section  15 — Assessment  roll,  what 
constitutes 

SECTION  16 260-261 

Contents  of  section  16 — Proceedings  for  collec- 
tion of  assessments — Sale  of  property — 
Redemption 

SECTION  17 262 

Contents  of  section  17 — Notice  to  owners  of 
property  taken  or  damaged,  that  a  warrant 
Las  been  drawn  for  payment  of  the  same 

SECTION  18 262 

1.  Contents  of  section  18 — Proceedings  to  condemn 

property  on    refusal    of    owner    to    accept 
warrant 

2.  Rules  of  procedure  in  actions  to  condemn — Evi- 

dence of  value 263-269 

SECTION  19 269 

Contents  of  section  19 — Warrants,  how  paid  by 
treasurer 

SECTION  20 269 

Contents  of  section  20 — Supplementary  assess- 
ments— Surplus,  how  divided 

SECTION  21 270 

Contents  of  section  21 — Proceedings  to  settle 
defective  title 

SECTION  22 270 

Contents  of  section  22 — Proceedings  when  bound- 
aries of  assessment  district  include  the 
whole  city 

SECTION  23 270 

Contents  of  section  23— Definitions  of  words 
used  in  the  act — Miscellaneous  provisions 

SECTION  24 271 

Contents  of  section  24 — Proceedings  commenced 
under  any  other  act — How  continued  under 
this  act 

SECTION  25 271 

Contents  of  section  25 — Act-hew  construed — 
When  takes  effect  ,Xj£eSE  ^  LlBR^t^s. 

I    w  m.»  T  TT  TT"  t3  C!  T  T1  "V    I 


XIV  STREET  WORK  LAW CONTENTS. 

STREET   OPENING  ACT   OF   MARCH   23,  1893. 
272-294. 

SECTION  1.  Powers  of  city  councils,  of  cities  having  over 

40,000  inhabitants,  to  open  streets,  etc 272 

Constitutionality  of  street  opening  act  of  March 

23,  1893 272-287 

SECTION  2.  Resolutions  of  intention — Boundaries  of  dis- 
trict   287 

SECTION  3.  Post  ng    notices — Publication 287 

SECTION  4.  Objections  filed   by  owners  of  land  affected — 

Time  for  hearing — Notification 287 

SECTION  5.  Hearing — Bar — When  jurisdiction   is  deemed 

to  have  been  gained 287-8 

SECTION  6.  Order  of  work — Commissioners — Compensa- 
tion— Qualification — Removal  of  Commis- 
sioners— Board  of  public  works — City  attor- 
ney— City  surveyor 288 

SECTION  7.  Office — Secretary    and    clerks 288 

SECTION  8.  Incidental  expenses — Payment    by    warrants      288-9 

SECTION  9.  Duties  of     commissioners  in  viewing,   etc. — 

Assessment  for  grading  and  filling  lots 289 

SECTION  10.  Commissioners'  report — Duty  of  council  rela- 
tive to  report 289 

SECTION  11.  Report  shall   specify  each  lot  taken,  etc. ...          289 

SECTION  12.  Conflicting   claims    to  title 289 

SECTION  13.  Report   and   plat  to  be  filed — Clerk   to   give 

notice  of  filing,  etc 290 

SECTION  14.  Objections  to  be  in  writing — Clerk  to   notify 

objectors — Duty  of  council  on  report ".  290 

SECTION  15.  Clerk  to  send  copies  of  assessment  and  plat 

to  street  superintendent 290 

SECTION  16.  Duty  of  superintendent — Notice  to  be  pub- 
lished— Assessments  become  delinquent — 
Advertising  delinquency — Delinquent  list 
to  be  published — Sale — Redemption — Deed, 
prima  facie  evidence — Superintendent  to  pay 
to  treasurer  moneys  collected  by  him 290 

SECTION  17.  Payments  for  purposed  work  and  improve- 
ments— If  warrants  not  called  for 291 

SECTION  18.  Condemnation    proceedings — Duty    of     city 

treasurer 292 

SECTION  19.  Priority  of   claims 292 

SECTION  20.  Defective  title— Duty  of  council 292 

SECTION  21.  "Work"  and  "improvement'1  defined — Post- 
ing— Proof — "Municipality"  and  "city" — 
Who  is  "street  superintendent'' — "City 
council"— "Clerk"— "Treasurer" 292 

SECTION  22.  Board  of  audit — Payment  of  commissioners 

expenditures 293 

SECTION  23.  Act  of  March  6,  1889,  made  applicable  to 
municipalities  having  40,000  inhabitants  or 
more — Life  of  existing  commissioners  may  be 
extended — Otherwise  back  action  is  voided 
and  commissioners  are  removed — What  is 
not  affected  by  this  act 293 

SECTION  24.  Act  to  be  liberally  construed 294 

SANITARY  DISTRICT  ACT.    295-307 

Constitutionality  of  sanitary  district  act 295 

SECTION  1.  Petition   for  formation  of  district 299 

SECTION  2.  Order  for   election 300 

SECTION  3.  Posting  and  publishing  copy  of  order 300 


CONTENNS 


SECTION  4.  Election — Order  declaring  district  to  be  estab- 
lished    300 

SECTION  5.  Powers    of  district 300 

SECTION  (>.  Officers  of   district 301 

SECTION  7.  Election   of    assessor — Vacancy 301 

SECTION  8.  Duties  of    assessor — Assessment  list 301 

SECTION  9.  Members    of    sanitary   board,     election   of — 

Classification — No  compensation  for  services          302 

SECTION  10.  Sanitary  board,  powers  of — President — Sign- 
ing documents — Meetings 302 

SECTION  11.  Board  of  equalization,  sanitary  board,  to  sit  as 
— Power  of— Kate  of  taxation — Assessment 
list— Tax  lien 302 

SECTION  12.  Collection  of  taxes,  by  cpunty  tax  collector — 

Suits  for  taxes '. 303 

SECTION  13.  Moneys  collected  to  be  turned  over  to  county 
treasurer — Sanitary  district  fund — Running 
expense  fund — How  moneys  to  be  paid  from 
fund 303 

SECTION  14.  Election  to  determine  whether  bonds  shall 

issue 304 

SECTION  15.  Election,  how  conducted — Bonds,  when  may 

be  issued 304 

SECTION  16.  Bonds,  when  and  how  payable,  and  form  of — 

Sale  of  bonds — Proceeds  of  sale 305 

SECTION  17.  Tax  to  pay  interest  and  principal  of  bonds — 
When  and  how  levied — Collection  of — Prin- 
cipal and  interest  to  be  paid  within  twenty 
years 305 

SECTION  18.  Special  proceedings  in  court  to  determine  the 

riiiht  to  issue  bonds  and  the  validity  thereof  306 

SECTION  19.  Orders  of  board  establishing  any  general  reg- 
ulation to  be  posted  and  published 306 

SECTION  20.  Duty  of  district  attorney,  to  prosecute  actions 

and  give  advice 306 

SECTION  21.  Dissolution  of  district 307 

SECTION  22.  Powers  of  board  to  construct  a  sewer  in  any 
street — Cost  of  may  be  borne  by  property 
fronting  on  line  of  sewer 307 

SECTION  23.  Conflicting  acts  repealed 307 

SECTION  24.  Act  takes  effect  immediately 307 

MUNICIPAL  INDEBTEDNESS  ACT.     308-312 

History  and  nature  of 308-310 

SECTION  1.  Powers  of  municipal  corporation  under  the  act          308 
SECTION  2.  Ordinance  determining  that  tne  public  inter- 
est, etc.,  demands  the  acquisition,  etc.,  of 
any  municipal  improvements,  etc. — Publi- 
cation   of    ordinance — Ordinance   calling   a 
special  election — Election,   how  conducted          310 
SECTION  3.  Ordinances,   how   published — What  vote  re- 
quired to  authorize  issuance  of  bonds 310 

SECTION  4.  Plans  and  estimates  of  cost 

SECTION  5.  Limit  to  amount  of  indebtedness '          311 

SECTION  6.  Form  and  character  of  bonds — When  and  how 

payable — Sale  of  bonds — Proceeds  of  sale. . .          311 
SECTION  7.  Rate  of  interest — Place  of  payment — Signing 

bonds,  etc. 311 

SECTION  8.  Tax  to  pay  interest  and  principal — How  and 

when  levied  and  collected 311 

SECTION  9.  Rules  and  regulations   for   carrying  out   and 

maintaining    improvements Engineers — 

Superintendents — Board  of  public  works. ..  312 


XVI  STREET  WORK  LAW CONTENTS 

SECTION  10.  Contracts  to  be  let    to    lowest   responsible 
bidder — Advertising  for  sealed  proposals — 

Bonds  from  bidders — Rejection  of  bids 

SECTION  11.  Bonds  of  treasurer 312 

SECTION  12.  Conflicting  acts  repealed 312 

SECTION  13.  When  act  takes  affect 312 

APPENDIX,     la — et  seq. 

Vrooman  Act  of  March  18,  1885 la 

Bond  Act  of  February  27,  1893 31a 

Street  Opening  Act  of  March  6,  1889 37a 

Forms  in  use  under  Vrooman  Act,  Bond  Act  and  Street 

Opening  Act 47a 


TABLE  OF  GASES  CITED. 

Anderson  v.  De  Urioste,  96  Cal.  404 63 

Appeal  of  Brooks,  et  al., 252,  259 

Appeal  of  N.  B.  &  M.  R.  R.  Co.,  32  Cal.  500 78,  252 

Appeal  of  Piper,  32  Cal.  530 252,  259 

Appeal  of  Reese,  32  Cal.  568 253,  259 

Argenti  v.  San  Francisco,  16  Cal.  256 50 

Barber  v.  San  Francisco.  42  Cal.  630 141 

Bassett  v.  Enwright,  19  Oal.  (536 76,  96,  138 

Baudry  v.  Valdez,  32  Cal.  2(59  ...  .3,  4,  20,  54,  7(.».  92,  102,  112, 

.113,  131,  161 

Banm  v.  Raphael,  57  Cal.  361 207 

I'.ays  v.  LapMiii',  5i>  (1al.  4Sl    155 

Bement    v.  Trenton  L.  &  M.  Co.  32  N.  J.  L.  515 127 

Bcvt'ridgr  v.  Livingston*-,  51  Cal.  54 62 

Bituminous  I. inn-  Rock  Pvg.  Co.  v.  Fulton,  33  Pac.  Rep.  1117.   153 

Blair  v.  Liming,  7<i  Cal.  134 79 

Blatncr  v.  Davis,  32  Cal.  32S 91,  92,  1(51 

Blount  v.  Jam-svillc,  31  Wis.  648 164 

Bonnet  v.  San  Francisco,  65  Cal.  230 3,  164,  177 

Boornian  v.  Santa  Barbara,  65  Oal.  313 20,  33,  41,  252 

Boyle  v.  Hitchcock,  »!»;  Cal.  129 137 

I'.nuly  v.  P.artlc-tt,  5'i  Cal.  350 55,  86,  132,  133,  156 

F.rady  v.  P.urk,  90  Cal.  1 24,  105,  148 

Brady  v.  I'Visd.  5:;  (1al.  49 46 

Brady  v.  Krlly,  :>2  Cal.  371 161 

Brady  v.  Kin-,  53  Cal.  44 19,  74,     77 

Brady  v.  Pa-c,  5i>  ( )al.  ~>2  and  301 93 

Brock  v.  Liming,  89  Cal.  316 13,  51,  54,  63,  140 

Brook  v.  Horton,  68  Cal.  554 246' 

Brooks  v.  Sattvrlee,  49  Cal.  289 46 

Brmvn  v.  Jenks,  32  Pac.  Rep.  701 55 

Bucknall  v.  Story,  36  Cal.  67 115,  139,  143,  213,  220,  230,  262 

Burke  v.  Turn.-y,  54  Cal.  486 51,  121,  140,  155,  156 

Burnett  v.  Sacramento,   12  Cal.  767 2(5,  71 ,     73 

Butte  Co.  v.  Boydston,  64  Cal.  110 259 

Callender  v.  Patterson,  66  Cal.  356 61 

Capron  v.  Hitchcock,  98  Cal.  427 17,  128,  130 

Chambers  v.  Satterlee,  40  Cal.  497 7,  11,  22,  45,  50,  54,  55, 

74,  91,  95,  121,  132,  134,  135,  139,  156,  160 

Chandler  v.  Dunn,  50  Cal.  15 7<; 

Charnock  v.  Los  Angeles, 38 

City  of  Bloomington  v.  Palmer,  67  la.  681 172 

City  of  Los  Angeles  v.  Dehail,  97  Cal.  13 263 

City  of  Napa  v.  Easterby,  61  Cal.  510 7,  26,  28,  160 

City  of  Pasadena    v.  Stfmson,  91  Cal.  251 273,  275,  281, 

282,  283,  284 
City  and   County  of  San  Francisco    v.    Kiernan,   33  Pac. 

Rep.    721 150,  245,  249,  263,  264,  271 

City  of  Santa  Ana  v.  Harlm,  decided  Sept.  13, 1893,  249,  265,  269 

City  of  Santa  Barbara  v.  Huse,  51  Cal.  217 146,  157,  159 

City  of  Stockton  v.  Creanor,  45  Oal.  644 54,  156,  159 

City  of  Stockton  v.  Dunham,  59  Cal.  608  and  609 92 

Clark  v.  Porter,  53  Cal.  409 146,  161 

Cleveland  v.  Wick,  18  Ohio  St.  303 259 

Cochran  v.  Collins,  29  Cal.  130 130 


XVIII  STREET    WORK   LAW CASES    CITED 

Colton  v.  Rossi,  9,  Cal.  595 214,  2.10,  2-U 

Ooniff  v.  Hastings436  Oal.  292 74,  1(51 

(Vmniff  v.  Kalm,  5  Cal.  284 15I> 

Conlin  v.  Board  of  supervisors  of  S.  F.,  33  Pac.  Rep,  75  >.  .  .  .  144 

Conlin  v.  Seaman,  22  Cal.  546 130 

County  of  Orange  v.  Harris,  97  Cal.  600 2--J7 

Coverdale  v.  Charlton,  4  L.  R.  Q.  B.   I)iv.  104 2 

Creighton  v.  Manson,  27  Oal.  613 1 

Creighton  v.  Pragg,  21  Oal.  115 144 

Davidson  v.  New  Orleans,   96  U,  S.  97  30 

Davies  v.  Los  Angeles,  86  Cal.  37  ...  .34,  73,  95,  138,  246,  249,  25.} 

Deady  v.  Townsend,  57  Cal.  298 20,  114,  160 

Dean  v.  Davis,  51  Cal.  406 298 

Dehail  v.  Morford,  95  Cal.  460. .  ..11,  20,  33,  94,  123,  141,  249, 

2-14,  255 

Desmond  v.  Dunn,  55  Cal.  242 274,  2S3 

DeWitt  v.  Duncan,  46  Cal.  343 251 

Diggins  v.  Brown,  76  Cal.  318 34,  73,  83,  95,  138,  247,  257 

Diggiiis  v.  Reay,  54  Cal.  525 146,  101 

Donahue  v.  Graham,  61  Oal.  276 S7 

Donnelly  v.  Howard,  60  Cal.  291 54,  113,  140,  J57 

Donnelly  v.  Marks,  47  Cal.  187 23,  45,     49 

Donnelly  v.  Tillman,  47  Oal.  40 23,  45,  49,  62,  154,  157 

Dorland  v.  Bergson,  78  Cal.  637 7,  54,  79,  113,  160 

Dorland  v.  McGlynn,  47  Cal.  48 145,  159 

Dougherty  v.  Coffin,  69  Cal.  454     i>2 

Dougherty  v.  Foley ,  32  Cal.  402 26,  58,     5i> 

Dougherty  v.  Harrison.   54  Oal.  428 31 

Dougherty  v.  Henarie,47  Cal.    10 76,  105,  116,  145 

Dougherty  v.  Hitchcock,  35  Cal.  512. . .  .11,  12,  13,  15,  17,  48, 

50,  51,54,92,  103,120,  139 

Dougherty  v.  Miller,  36  Oal.  83 14,  75,     98 

Dougherty  v.  Nevada  Bank,  81  Oal.  162 63 

Dowling  v.  Altscluil,  33  Pac.   Rep.  495 73,95,127,130, 

133,  138 

Doyle  v.  Austin,  47  Cal.  353. 76,  224,  257 

Dunne  v.  Altschul,  57  Cal.  472 53 

Dyer  v.  Barstow,  50  Cal.  652 74,  1 55 

Dyer  v.  Barstow,  53  Cal.  81 144 

Dyer  v.  Brogan,  57  Cal.  234 114,  160 

Dyer  v.  Brogan,  70  Cal.  136 159 

Dyer  v.  Chase,  52  Cal.  440 54,  113 

Dyer  v.  Ohase,  57  Oal.  284 •.    162 

Dyer  v.  Harrison,  63  Cal.  447 34,  73,  95,  138,  247,  257 

Dyer  v.  Hudson,  65  Cal.  374 8,  19,  160 

Dyer  v.  Martinovich,  63  Oal.  353 94 

Dyer  v.  Miller,  58  Oal.  585 8,  197 

1     Dyer  v.  North,  44  Cal.  157. 22,  144,  154 

Dyer  v.  Parrott,  60  Oal.  551 1 37 

Dyer  v.  Pixley,  44  Oal.  153 144 

Dyer  v.  Scalmanini,  69  Cal.  637 54,  7!),     <)2 

Earl  v.  S.  F.  Board  of  Education.  55  Oal.  489. ..  .207,  223,  273,  283 

Easterbrook  v.  O'Brien,  33  Pac.  Rep.  765 143,  220 

Ede  v.  Cogswell,  79  Oal.  278 75 

Ede  v.  Knight,  93  Cal.  159 (>;!,  75,  78,  92,  113,  114,  159,  160 

Ely  v.  Thompson,  3  A.  R.  Marsh  (Ky.)  70 28<> 

Emery  v.  Bradford,  29  Oal.  86 15,  70,  86,  119,  124,  132  155 

Emery  v.  S.  F.  Gas  Co.  28  Cal.  376.  .  .7,  19,  52,  62,  70,  71,  7-5, 

74,  ISO,  165 

Eustace  v.  Jahns,  38  Cal.  3 166,  169,  !  7S 

Ex  parte  Ah  You,  82  Cal.  343 2S5 

Ex  parte  Henshaw,  73  Oal. 507  * 281,  284,  286 


CASES    CITED  XIX 

Fanning  v.  Bolnne,  70  Cal.  149 159 

Fanning  v,  Levi^ton,  93  Ual.  18G    86,  130,  137,  159 

Fanning  v.  S.-hammel,  <iS  Cal.  428 62,     77 

Foley  v.  Bui  lard,  decided  Sept.  11,  1893. . 106,  112 

Fric-k  v.  Morford,  87  Cal.  576 78,  92,  96,  98,  105,  130,  137,  140 

Gaffney  v.  Donohue,  36  Cal.  104 74,  112,  161 

Gafney  v.  San  Fram-isro,  72  Cal.  146 7,  54,  160 

Gately  v.  Irvine,  51  Cal.  172 159 

Gately  v.  Leviston.  «;:•{  Cal.  3«;f> 8,  197 

Gillis'v.  Cleveland,  S7  Oal.  214 74,  79,  90,  96,  102,  103,  161 

(Joddnrd.  petitioner,  16  Pick,  504 173 

Grove  Street,  In  re,  61  Cal.  438 14,  29,  32.  251 

(iuerin  v.  Kee*e,  83  Cal.  293 74,  109,  110,  161,  Ko 

Ila-rr  v.  Re.lamation  Dist.,  Ill  U.  S.  701 30 

llammt'tt  v.  Philadelphia,  65  I  Van.  St.  155 171 

Hanrork  v.  P.mvnum,  49  Cal.  418 .146,  161 

!lan ••<>  -k  v.  Whitteniore,  50  Cal.  522 76 

Harmon  v.  Omaha,,  17  Neb.  54S 200,  20:5 

Hamey  v.  Ai.ple.uate,  57  Cal.  205 146,  157 

1  la; -ii'.'y  v.  (  om.nm,  60  Cal.  :;i4 157 

llarm-y  v.  Heller,  47  Cal.   15 20,  27,  30 

Barney  v.  MeLeran.  66  Cal.  35 157,  159 

Hart  v.  Gaven,  12  Oal.  477 :    ..   ..  169 

Haskell  v.  Harriett,  84  Cal.  281 23 

Heft.  v.  Payne,  97  Cal.  108 6:5 

Heinlrick  v.  Crowley,  :n  Cal.  472; 60,  145,  151 

.  S  v.  lii-is,  40  Cal.  2">5 12,  45,  91,  92 

Heyneman  v.  Blake,  19  Oal:  579 ::   i 

1  iinmielmann  v.  r>atcinan.  50  Cal.  11 93 

Hi  inn  i  el  ma  nn  v.  I'oolli,  5:>  Cal.  50 112 

Himmelmann  v.  Uyrru-.  41  Cal.  500, 45 

Himmelmann  v.  Calm,  49  Cal.  2S5 46,     1'2 

Himmelmann  v.  Carpentier,  47  Cal.  42 145,159 

Himmelmann  v.  Cofran,  36  Cal.  411 92,  10(1 

Himmelmann  v.  I  tain. s.  85  Cal.  441 103,  115,  151,  155 

Himmelmann  v.  Haskell,  46  Cal.  67 '. 154 

Himmelmann  v.  Hoauley,  44  Cal.  213 7,  55,  91,  103,  104, 

105,  111,  114,  115,  132,  15(5,  160 

Himmelmann  v.  Hoadley,  44  Cal.  276 79,  136 

Himmelmann  v.  MrCreery,  51   Cal.  562 19 

Himmelmann  v.  Oliver,  34  Cal.  246 59,  116 

Himmelmann  v.  Keay,  38  Cal.  163 16,  115 

Himmelmann  v.  Satterlee,  50  Cal.  69 3,  49,  54,  112 

Himmelmann  v.  Spanagel,  39  Oal.  389 75,  156 

Himmelmann  v.  Steiner,  38  Cal.  175 74,  91,  lol 

Himmelmann  v.  Tmvnsend,  49  Cal.  150 49,  110,  154 

Himmelmann  v.  Woolrich,  45  Cal.  249 112,  114,  160 

Houston  v.  McKenna,  22  Cal.  550 74 

In  re  Beal  Street,  39  Cal.  495 199,  202,  204,  208 

In  re  Fulton  Street,  29  How.  Pr.  (N.  Y.)  429 164 

In  re  Goddard,  16   Pick.  504 173 

In  re  Grove  Street,  61  Cal.  438 14,  29,  32,  251 

In  re  Market  Street,  49  Cal.  546 78 

In  re  Madera  Irrigation  District,  92  Cal.  296 298 

Irrigation  District  v.  Williams,  76  Cal.  360 298 

Jennings  v.  LeBreton,  80  Cal.  8 70,  86,  103,  130 

Jennings,  v.  LeRoy,  63  Cal.  397 158 

Joslyn  v.  Rockwell,  128  N.  Y.  334 229 

Kahn  v.  Board  of  Supervisors,  79  Cal.  388 176 

Kelly  v.  Liming,  76  Cal.  311 76,     77 

Kepple  v.  City  of  Keokuk  2  Am.  and  Eng.  Corp.  Cases  446 

193  199 


STREET  WORK  LAW CASES    CITED 

Knowles  v.  Seale,  64  Cal.  377. .                                              .  .8,  165 
Kreling  v.  Muller,  86  Cal.  465 33,  162 

Leek,  etc.  Commissioners,  v.   Justices  of  Stafford,  20  Q.  B. 

Div.  797". ...   164 

Lent  v.  Tillson,  72  Cal.  404 30,  33,  41,  70,  143,  220,  253 

Libby  v.  Ellsworth,  97  Cal,  316 52,  62,  155 

Los  Angeles  v.  Dehail,  97  Oal.  13 263 

Macadamizing  Co.  v.  Williams,  70  Oal.  534 6,  111,  159 

Mahlstadt  v.  Blanc,  34  Cal.  577 145 

Mahoney  v.  Braverman,  54  Cal.  565 141 

Manning  v.   Den,   90   Cal.  610. .  .16,  51,  56,  74,  128,  140,  141, 

145,  155,  156,  158,  161,  170 

Mappa  v.  Los  Angeles,  61  Cal.  309 63 

Marini  v.  Graham,  67  Oal.  130 3 

Marx  v.  Hawthorn,    13  Sup.  Ct.  Rep.,  508 229 

May  v.  Lyons,  47 

Mayo  v.  Ah  Loy,  32  Cal.  477 90 

McBean  v.  Martin,  96  Cal.  188 110 

McBean  v.  Redick,  98  Cal.  191 16,  54,  130,  139 

McCann  v.  Sierra  Co.,  7  Oal.  121 264 

McCarthy  v.  City  of  St.  Paul,  22  Minn.  527 200 

McCormick  v.  Patchin,  53  Mo.  33 172 

McCready  v.  Sexton,  29  Iowa  356 229 

McDonald  v.  Conniff,  decided  Aug.  30,  1893 98.  149 

McDonald  v.  Dodge,  97  Oal.  112 20,  26,  32,     48 

McDonald  v.  Patterson,  54  Cal.  245 87 

McVery  v.  Boyd,  89  Cal.  305 6,  52,  63,  137,  158,  233 

Meuser  v.  Risdon,  36  Cal.  239 22,  45,  59,     76 

Miller  v.  Kister,  68  Cal.  145 274,  283 

Miller  v.  Mayo,  88  Cal.  568 25,  60,  155 

Modesto  Irrigation  District  v.  Tregea,  88  Oal.  334 299 

Mok  v.  Detroit  Ass'n,  30  Mich.  511 207,  221 

Montgomery  Avenue  Case,  54  Cal.  579 194,  198 

Morrison  v.  Bachert,  112  Penn.  St.  322 276,  283,  286 

Moulton  v.  Parks,  64  Cal.  181 ...  .34,73,  95,  196,  198,  247,  256,  295 
Mulligan  v.  Smith,  59  Cal.  206 176 

Nagle  v.  McMurray,  84  Cal.  539 .156 

Nicolson  Pvg.  Co.  v.  Fay,  35  Oal.  695 53,     54 

Nicolson  Pvg.  Co.  v.  Painter,  35  Cal.  705 13,  53,  123 

Nolan  v.  Reese,  32  Cal.  484 55,  118,  131,  156 

Norton  v.  Courtney,  53  Oal.  691 94 

Oakland  Pvg.  Co.  v.  Barstow,  79  Cal.  45 75 

Oakland  Pvg.  Co.  v.  Hilton,  69  Cal.  479 88 

Oakland  Pvg.  Co.  v.  Rier,  52  Cal.  270 137 

Oakland  Pvg.  Co.  v.  Tompking,  72  Cal.  5 88 

Pacific  Coast  Ry.  Co.  v.  Porter,  74  Oal.  261 259 

Pacific  Pvg.  Co"  v.  Bolton,  97  Oal.  8 153 

Palmer  v.  McMahon,  10  Sup.  Ct.  Rep.  324 30 

Parker  v.  Bernal,  66  Oal.  113 146,  175 

Parker  v.  Reay,  76  Cal.  103 78,  81,  113 

Partridge  v.  Lucas,  decided  Sept.   11,  1893 54,  77,  113 

Pasadena  v.  Stimson,  91  Cal.  230 273,  275,  281,  282,  283,  284 

People  v.  Brooklyn,  21  Barb.  (N.  Y.)  484 164 

People  v.  Central  Pac.  R.  R.  Co.,  83  Cal.  393. .  ..149,  151,  282,  283 

People  v.  Clark,  47  Cal.  456 151 

People  v.  Eaton,  46  Cal.  100 156,  157 

People  v.  Henshaw,  76  Cal.  442 277-286 

People  v.  Kinsman,  51  Cal.  92 145 


CASKS    CITED  XXI 

People  v.  Kruger,  19  Cal.  411 250 

People  v.  Lynch,  51  Cal.  15 34.  70,  72,  73,74,  77,  95,  138, 

145,170,171,  247,  256 

People  v.  McCain,  51  Cal.  360 23,  77 

People  v.  Olvera,  43  Cal.  492 76 

People  v.  O'Neil,  :>l  Cal.  91 141,  145 

People  v.  Strother,  67  Cal.  624 88 

People  v.  Williams,  56  Cal.  (547 298 

Perine  v.  Forbush,  97  Cal.  305 13,  16,  52,  54,  77, 130,  137, 

140,  155,  156,  162 

Plu-hin  v.  Dunne,  72  Cal.  229 146,  175 

Polack  v.  S.  F.  Orphan  Asylum,  48  Cal.  490 246 


Raisch  v.  >an  Francisco,  80  Cal.  1 63 

Randolph  v.  I.ayue,  44  Cal.  3<>6 74,  105,  116,  145,  161 

Randolph  v.Ciawley,  47  Cul.4.~>8 19 

Reardon  v.  City  and  County  of  San  Francisco, 66  Cal.  492  199,  203 

Reclamation  District  v.  Hagar,  <)<i  Cal.  54 298 

Reed  v.  City  of  Toledo,  18  Ohio  161 244 

Reinken  v.  "Fuehring,  (Ind.)  30  X.  E.  Rep.  414 172 

Reis  v.  (Iraff,  51  CaK  86 49,  77,  145 

Richardson  v.  Heydenfeldt,  46  Cal.  68 19 

Richardson  v.  Tol.in,  4o  Cal.  3d 24.  148 

Robinson  v.  Merrill,  87  Cal.  11     145,  146,  159 


Sands  v.  City  of  Richmond,  31  Gratt.  571 173 

San  Francisco  v.  Certain  Real  Estate,  50  Cal.  188 102 

San  Fran<-isco  v.  Certain  Real  Kstate,42  Cal.  513 77 

San  Francisco  v.  Doe,  48  Cal.  560 154 

San  Francisco  v.  Kiernan,   33  1'ac.   Rep.  721.. 150,   245,  249, 

LV.:J,  264,  271 

San  Francisco  v.  McCain,  50  Cal.  210 23 

San  Francisco  v.  Quaekenbush,  53  Cal.  52 93 

San  Jose  v.  Reed,  65  Cal.  241 264 

Santa  Ana  v.  Harlin,  decided  Sept.  13,  1893 249,  265-269 

S.  &  L.  Society  v.  Thompson,  32  Cal.  347 23 

Schmidt  v.  Market  St.  R.  R.  Co.,  90  Cal.  37.  .25,  67,  68,  69, 

233   234 

Schirmer  v.  Hoyt,  54  Cal.  280 '  112 

Schumacker  v.  Toberman,  56  Cal.  508 74,     77 

Sharpe  v.  Johnson,  4  Hill  92 90,     94 

Shaw  v.  Crocker,  42  Cal.  435 199 

Shepard  v.  Colton,  44  Cal.  628 22,  45,  49,  157 

Shepard  v.  McNeil,  38  Cal.  72 86,  92,  115,  130 

Shipman  v.  Forbes,  97  Cal.  572 101,  102,  123,  125,  126,  127 

Sinton  v.  Ashbnry,  41  Cal.  525 250 

Smith  v.  Cofran,  34  Cal.  310 90,  91,  94,  96,  98,  105,  138,  140 

Smith  v.  Davis,  30  Cal.  537 90,  110 

Spaulding  v.  Bradley,  79  Cal.  450 5 

Spauldmg  v.  Homestead,  87  Cal.  40 13,  29,  31,  138 

Spaulding  v.  Wesson,  84  Cal.  141 155 

Spencer  v.  Merchant,  125  U.  S.  345 30 

State  v.  Herrmann,  75  Mo.  340 276,  283 

State  v.  Mitchell,  31  Ohio  St.  592 277,  283 

State  v.  Thurston,  (Mo.)  4  S.  W.  Rep.  930 207 

State  v.  Trenton,  42  X.  J.  L.  486 276,  280,  283 

Stockton  v.  Clark,  53  Cal.  82 47 

Stockton  v.  Creanor,  45  Cal.  643 54,  156,  159 

Stockton  v.  Skinner,  53  Cal.  85 46 

Stockton  v.  "Whitmore,  50  Cal.  554 54 

Stone  v.  Brooks,  35  Cal.  490 5 

Strode  v.  Washer,  (Or.)  16  Pac.  Rep.  926  229 


XXII  STREET    WORK    LAW CASES    CITED 

Taylor  v.  Dormer,  31  Gal.  481 .  .90,  145 

Taylor  v.  Palmer,  31  Cal.  241. ...  20,  23,  34,  52,  60,  62,  70,  74, 

77,  106,  130,  145,  161,  170 

Tehama  Co.  v.  Bryan,  68  Oal.  57 259 

Thomason  v.  Ashworth,  73  Cal.  73 88 

Turner  v.  Dougherty,  53  Cal.  619 63 

Turrill  v.  Grattan,  52  Cal.  97 8,  197 

Village  of  Carthage  v.  Frederick,  (N.  Y.)  25  N.  E\  Rep.  480.  .  173 

Walston  v.  Nevin,  128  U.  S.  578 30 

Washburn  v.  Lyons,  97  Cal.  314 20,  52,  62,  155 

Weber  v.  City  6f  S.  F.,  1  Oal.  455 315,  148,  220 

White  v.  Harris,        35,  184 

Whiting  v.  Quackenbush,  54  Cal.  306 70,  72,  73,  93 

Whiting  v.  Townsend,   57  Cal.  515 20,  70,  111,  114, 

148,  157,  160 

Wilcox  v.  City  of  Oakland,  49  Cal.  29 251 

Williams  v.  McDonald,  58  Oal.  527   20,  93 

Williams  v.  Savings  and  L.  Soc.,  97  Cal.  122 93,  160 

Wistar  v.  Philadelphia,  80  Pa.  St.  505 172 

Wood  v.  Strother  76  Cal.  545 100,  107 


UNIVERSITY 
.CALIFORNIA. 

[NTRODUCTION. 


CLASSIFICATION    OF    THE    STREET    LAWS. 

The  object  of  this  book  is  to  bring  together  in  one  volume 
all  the  statutes  of  this  state  now  in  force  bearing  upon  the 
subject  of  street  work,  and,  by  a  system  of  annotations, 
taken  from  the  decisions  of  our  Supreme  Court  upon  these 
and  prior  acts,  illustrate,  in  so  far  as  possible,  the  workings 
of  the  acts  and  the  questions  which  their  operation  has 
given  rise  to  from  time  to  time. 

The  term  "street  work"  is  a  phrase  of  common  usage  and 
has  a  well-defined  signification.  The  words  mean  exactly 
what  they  indicate  upon  their  face,  namely,  work  upon  a 
street — work  in  repairing  or  improving  an  existing  street, 
or  in  making  a  street.  [Electric  Light  and  Power  Co.  v. 
City  of  San  Bernardino,  No.  19,282,  decided  Nov.  25,  1893.] 

The  street  laws  of  this  state  naturally  divide  themselves 
into  what  may  be  called  the  "street  improvement  acts"  and 
the  "  street  opening  or  street  widening  acts."  The  street 
opening  acts  do  not  make  any  provision  for  nor  authorize 
any  improvement  upon  streets.  They  merely  authorize  the 
creation  or  partial  creation  of  or  the  widening  or  closing  of 
streets.  The  street  improvement  acts  make  provision  for 
improvements  upon  existing  streets.  In  fact,  this  is  their 
sole  aim  and  object.  The  street  opening  and  closing  acts 
provide  for  the  closing  of  streets  or  for  the  taking  of  prop- 
erty to  open,  widen  or  extend  streets,  and  the  assessment  of 
the  costs  and  expenses  thereof  upon  the  property  benefited 
thereby.  Beyond  the  acquisition  of  the  right  of  way  for 
the  street,  or  perhaps  its  fee  in  the  land,  if  the  council  deem 
that  necessary,  and  clearing  the  surface  of  such  obstructions 
as  exist  on  the  surface  of  the  earth  and  interfere  with  the 
"opening,"  "extending,"  or  "widening"  of  the  street,  they 
do  not  provide  for  any  artificial  improvement  upon  the 
street,  such  as  grading  or  paving.  The  term  "  opening  " 
does  not  include  the  improving  of  a  street  by  grading,  pav- 
ing, etc.  It  refers  to  throwing  open  to  the  public  what  be- 
fore was  appropriated  to  private  use.  Such  street  improve- 


XXII  STREET    WORK    LAW INTRODUCTION 

ments  as  grading,  paving,  sewering,  etc.,  are  provided 
for  by  the  street  improvement  acts.  Hitherto  it  has  been 
the  policy  of  the  legislature  to  provide  for  improvements 
upon  existing  streets  by  acts  entirely  distinct  from  the  acts 
providing  for  opening,  extending,  widening  and  closing 
streets. 

The  "street  improvement  acts"  include  those  acts  which 
provide  for  improvements  upon  existing  streets — streets 
opened  or  dedicated  to  public  use,  and  include  specifically: 
(1.)  The  Vrooman  Act  of  March  18,  1885 — "  An  act  to  pro- 
vide for  work  upon  streets,  lanes,  alleys,  courts,  places  and 
sidewalks,  and  for  the  construction  of  sewers  within  muni- 
cipalities"— together  with  various  amendments  thereto.  Said 
amendments  include  the  amendments  whereby  sections  38 
to  53,  inclusive,  were  added  to  the  act.  These  added  sec- 
tions contain  provisions  for  changing  the  grade  of  streets  in 
all  capes  where  the  official  grade  has  once  been  established. 
(2.)  The  Bond  Act  of  February  27, 1893 — an  act  to  provide 
a  system  of  street  improvement  bonds.  This  act  is  in  the 
nature  of  a  supplementary  act  to  the  Vroornan  act  of  March 
18,  1885,  and  is  appropriately  classified  as  a  "street  improve- 
ment act."  (3.)  The  Tree  Planting  or 'Shade  Tree  Act  of 
March  11,  1893 — an  act.  to  provide  for  the  planting,  main- 
tenance and  care  of  shade  trees  upon  streets,  etc.  This  act  may 
also  be  classified  with  the  "street  improvement  acts."  (4.) 
The  Sanitary  District  Act  of  March  31,  1891 — an  act  to  pro- 
vide for  the  formation,  government,  operation  and  dissolu- 
tion of  sanitary  districts  in  any  part  of  the  state;  for  the 
construction  of  sewers,  etc.  The  foregoing  acts,  four  in 
number,  constitute  the  existing  distinctively  "street  improve- 
ment acts"  of  this  state. 

The  second  class  of  acts — the  "street  opening"  or  "street 
widening"  acts — includes  the  street  opening  and  widening 
act  of  March  6,  1889,  and  the  act  of  March  23,  1893. 

Lastly,  the  Municipal  Indebtedness  Act  of  March  19y 
1889 — an  act  authorizing  the  incurring  of  indebtedness  by 
cities,  towns,  etc.  This  act,  since  it  affords  means  for  pay- 
ing the  expenses  of  the  work,  either  of  improving  streets 
already  opened  or  dedicated,  or  of  opening  or  widening 
streets,  may  be  said  to  be  common  to  both  of  the  above  clas- 
sifications. It,  in  effect,  supplements  the  provisions  of  each 
ofthe  foregoing  acts. 

The  street  improvement  and  street  opening  acts,  with 
annotations  consisting  of  such  decisions  by  the  Supreme 
Court  of  this  state  as  relate  to  the  provisions  of  these  acts, 


HISTORY  OF  THE  STREET  IMPROVEMENT    ACTS.  XXIII 

or  to  similar  provisions  of   former  street   work  acts,  consti- 
tute the  subject  matter  of  this  book. 

No  adequate  knowledge  of  the  provisions  of  the  street 
work  acts  now  in  force  throughout  the  state  can  be  had 
without  a  study  of  the  decisions  construing  similar  pro- 
visions of  prior  acts.  And  for  this  reason  some  knowledge 
of  these  prior  acts  and  of  their  history  is  necessary.  The 
history  of  the  street  work  acts  of  thisstate  naturally  divides 
itself  into  t\vo  periods.  First,  there  are  those  acts  which 
existed  prior  to  the  adoption  of  the  new  constitution — the 
constitution  of  1879,  which  went  into  effect  on  the  1st  day 
of  January,  1880.  And,  secondly,  there  are  those  acts 
which  have  existed  since  the  adoption  of  the  new  con- 
stitution. Prior  to  the  new  constitution  special 
and  local  legislation  was  permissible  and  constitu- 
tional. Consequently,  under  the  old  constitution  the 
great  body  of  statutes  relating  to  street  improvements  was 
to  be  found  in  the  charters  of  the  several  municipalities  of 
the  state  and  in  the  acts  amendatory  thereof.  Each  muni- 
pality  performed  its  street  work,  not  under  some  general 
statute  operating  uniformly  all  over  the  state,  in  every 
municipality  of  the  state,  but  under  those  provisions  of  its 
own  charter  which  related  to  street  work,  or  under  statutes 
amendatory  thereof,  or  under  special  and  local  statutes 
applicable  only  to  that  particular  municipality.  But  the 
new  constitution  prohibits  the  passage  of  any  special  or 
local  legislation  authorizing  the  laying  out,  opening,  alter- 
ing, maintaining,  or  vacating  highways,  streets  or  alleys, 
or  in  fact,  any  fpecial  or  local  legislation  whatever,  where 
a  general  law  can  be  made  applicable.  [Const.  Art.  IV  sec- 
tion 25.]  And  it  has  been  held,  under  the  new  constitu- 
tion, that  street  work  laws,  such,  for  example,  as  the  Vroo- 
man  act  of  March  18,  1885 — which  apply  to  all  the  munici- 
palities of  the  state — are  "general  laws"  within  the  mean- 
ing of  that  term  as  used  in  section  6  of  article  XI  of  the 
constitution;  that  such  general  street  work  laws  control  the 
provisions  of  municipal  charters  granted  by  the  legislature 
prior  to  the  adoption  of  the  new  constitution — the  charter 
of  the  city  and  county  of  San  Francisco,  for  example — and 
that  in  such  municipalities  public  improvements  upon 
streets  and  highways  must  be  performed  under  such  general 
street  laws,  and  not  under  the  charters  of  such  municipali- 
ties or  special  laws  amendatory  thereof.  [Thomason  v. 
Ashworth,  73  Cal.  73;  Peoples.  Herishaw,  76  Cal.  436; 
Ex  parte  Ah  You,  82  Cal.  339.]  And,  it  has  likewise  been 
held  that  such  general  laws  control  and  supersede  the  pro- 
visions of  charters  framed  or  adopted  since  the  new  consti- 


XXIV  STREET    WORK   LAW INTRODUCTION 

tution  went  into  effect — "freeholders  charters."  [Davies  v. 
City  of  Los  Angeles,  86  Cal.  37.]  In  Thomason  v.  Ash- 
worth,  73  Cal.  78,  Mr.  Justice  Thornton  said:  "It  is  argued 
that,  according  to  the  views  herein  expressed,  a  city  may 
have  its  charter  totally  changed  without  its  consent.  This 
is  a  proper  deduction  from  the  ruling  herein,  but  this  can- 
not be  done  by  a  special  or  local  law  applicable  only  to  a 
particular  charter.  The  result  can  only  be  reached  by  a 
general  law  affecting  all  municipal  corporations,  or  it  may 
be  all  of  a  class,  and  we  can  see  no  probability  that  a  city 
can  be  injured  by  general  legislation." 

Whatever  may  be  said  about  the  destruction  of 
local  self-government  and  of  municipal  autonomy  in 
purely  municipal  affairs,  which  these  decisions  may 
be  supposed  to  lead  to,  at  least  one  advantage 
of  considerable  importance  is  derivable  from  these  rulings, 
viz:  Where  each  city  operated  under  special  charter  pro- 
visions or  special  or  local  laws  authorizing  work  to  be  done 
upon  the  streets  of  such  city,  a  decision  construing  a  pro- 
vision in  the  charter  of  any  particular  city,  or  construing  a 
provision  in  some  special  or  local  law,  was  of  little  use  as  a 
precedent  in  cases  arising  under  the  charters  of  other  cities, 
mid  hence,  because  of  the  heterogeneity  of  the  street  laws 
of  the  state,  there  could  be  but  little  certainty,  no  matter 
how  numerous  the  decisions  might  be.  Whereas,  under 
the  ruling  that  the  provisions  of  a  general  street  work  law 
— such  as  the  Vrooman  act  of  March  18,  1885,  or  the  street 
opening  act  of  March  6,  1889 — are  applicable  to  municipa- 
lities all  over  the  state,  every  decision  construing  any  par- 
ticular provision  of  the  law  tends  to  clear  away  all  uncer- 
tainties, and  is  as  helpful  in  determining  the  nature  and 
extent  of  the  powers  and  duties  of  the  municipal  authorities 
of  any  city  of  the  state,  as  it  is  helpful  in  determining  such 
powers  in  the  particular  municipality  in  which  the  case 
arose.  It  is  a  guide  to  future  action  in  every  municipality 
of  the  state;  and,  as  certainty  in  a  bad  law  is  often  more 
desirable  than  a  good  law  without  certainty,  it  follows  that 
advantages  which  may  flow  from  holding  these  general 
street  work  laws  to  control  and  supersede  all  inconsistent 
charter  provisions,  by  reason  of  the  greater  certainty  in  the 
law  which  may  be  attained  thereby,  may  outweigh  all 
those  advantages  which  might  possibly  accrue  to  each 
municipality  if  its  own  charter  provisions  controlled  in 
the  matter. 

History  of  Street  Improvement  Acts  in  San  Francisco  Prior 
to  the  New  Constitution.  As  stated  supra,  no  adequate 
knowledge  of  the  present  general  street  improvement  act — 


HISTORY    OF    STREET    IMPROVEMENT    ACTS  XXV 

the  Vrooman  act  of  March  18,  1885 — is  attainable  without 
some  knowledge  of  the  history  of  prior  street  improvement 
acts.  But  as  these  prior  street  improvement  acts  consisted 
of  a  mass  of  charter  provisions  or  of  special  and  local  stat- 
utory enactments,  it  is  neither  convenient  nor  necessary  to 
set  them  forth  here,  but  the  history  of  the  statutory  provi- 
sions made  specially  applicable  to  the  city  and  county  of 
San  Francisco  will  suffice  as  an  illustration  of  all  the  others. 
And,  as  the  principal  distinguishing  characteristic,  which 
distinguished  the  successive  San  Francisco  street  work 
acts,  related  to  the  principle  of  assessment — i.  e.,  the  prin- 
ciple according  to  which  the  costs  and  expenses  of  the  work 
were  apportioned  among  the  property  owners — only  the 
date  of  each  act  will  be  given  and  the  principle  of  assess- 
ment by  which  it  was  characterized.  Thus  the  various 
acts  of  the  legislature  appertaining  to  and  regulating  street 
work  in  the  city  and  county  of  San  Francisco,  including 
the  charters  of  that  municipality,  may  be  used  to  illustrate 
the  history  or  growth  of  the  street  law  in  all  of  our  munici- 
palities prior  to  the  new  constitution,  though  many  of  the 
charters  of  the  other  cities,  and  the  various  special  and 
local  acts  of  the  legislature  applicable  to  them,  may  exhibit 
many  features  or  characteristics  differing  widely  from  the 
charters  of  San  Francisco  and  from  the  special  laws  appli- 
cable to  public  improvements  in  this  particular  municipal- 
ity. But,  if  it  be  remembered  that  all  of  the  charters  of 
the  several  municipalities  of  the  state,  together  writh  the 
special  acts  of  the  legislature  amendatory  thereof,  or  acts 
which  in  any  manner  provided  for  work  upon  the  streets, 
sewers,  etc.,  in  the  several  cities,  passed  through  many 
similar  stages  in  the  progress  of  their  evolution  from  the 
establishment  of  the  municipal  governments  in  these  cities 
up  to  the  present  date,  it  will  be  obvious  that,  for  the  pur- 
pose of  illustrating  this  growth  of  the  street  laws  of  this 
state  prior  to  the  adoption  of  the  new  constitution,  it  will 
be  sufficient  to  briefly  sketch  the  history  of  the  charters  of 
the  city  of  San  Francisco,  and  the  special  acts  amendatory 
thereof,  prior  to  the  adoption  of  our  present  constitution. 
In  this  way  the  history  0f  the  street  laws  applicable  to  one 
city  may  be  made  to  serve  as  a  sufficient  illustration  of  the 
growth  of  similar  laws  in  all  the  cities  of  the  state,  not- 
withstanding the  fact  that  the  charters  of  the  different 
cities  and  these  special  amendatory  acts  differed  materially. 

The  history  of  the  street  improvement  acts  applicable  to 
the  city  of  San  Francisco,  prior  to  the  new  constitution,  is 
as  follows: 

April    15th,    1850,   the   first  legisl|^"iI~W^%P --State    of 


XXVI  STREET    WORK    LAW INTRODUCTION 

California  passed  an  act  entitled  "An  act  to  incorporate 
the  city  of  San  Francisco."  This  was  the  first  charter  of 
the  city  of  San  Francisco  and  by  it  the  municipality  known 
as  the  "city  of  San  Francisco"  was  established  and  incor- 
porated. [Statutes  of  1850,  page  223]. 

Under  this  first  charter  of  San  Francisco,  one-third  of  the 
expense  of  doing  the  work  was  paid  out  of  the  city  treasury, 
and  two-thirds  "paid  in  equal  proportions  by  the  land  on  both 
sides  of  the  street,"  etc.,  but  the  principle  of  apportion- 
ment,— whether  according  to  the  value  of  the  property 
fronting  the  street,  or  the  benefits  accruing  to  such  property, 
or  according  to  the  number  of  front  feet, — was  not  indi- 
cated by  this  charter. 

April  15,  1851,  the  legislature  passed  an  act  entitled 
"An  act  to  re-incorporate  the  city  of  San  Francisco." 
This  is  known  as  the  charter  of  1851.  By  this  charter  the 
expenses  were  apportioned  according  to  the  benefits  received 
or  "advantages  respectively  derived  from  such  improve- 
ment"— at  least  two-thirds  of  the  expenses  to  be  borne  by 
and  assessed  upon  the  adjacent  property.  [See  statutes  of 
1851,  page  365.] 

By  the  charter  of  1855, — created  or  granted  by  an  act 
approved  May  5,  1855,  entitled  "An  act  to  re-incorporate 
the  city  of  San  Francisco," — it  was  provided  that  the  "cost 
and  expenses  of  all  such  works  shall  be  assessed  upon  the 
property  particularly  benefited  thereby,  in  proportion  to 
the  benefit  received  from  such  work  by  said  property, 
exclusive  of  the  general  benefit  shared  by  said  property,  in 
common  with  the  rest  of  the  city."  [See  statutes  of  1855, 
page  264.] 

The  act  known  as  the  "consolidation  act"  was  approved 
April  19,  1856.  It  is  entitled  "an  act  to  repeal  the  several 
charters  of  the  city  of  San  Francisco,  to  establish  the 
boundaries  of  the  city  and  county  of  San  Francisco,  and  to 
consolidate  the  government  thereof."  By  this  act  the  cor- 
poration known  and  existing  as  the  city  of  San  Francisco 
was  expressly  continued  as  a  body  politic  under  the  name 
of  the  "  city  and  county  of  San  Francisco,"  and  all  the 
property  and  effects  of  both  the  city  of  San  Francisco  and 
the  county  of  San  Francisco  were  transferred  to  the  cor- 
poration known  as  the  "city  and  county  of  San  Francisco," 
which  municipality,  was,  by  the  "consolidation  act,"  formed 
by  the  union  or  consolidation  of  both  the  city  and  county. 
[Wood  v.  Election  Commissioners,  58  Cal.  561.]  Article  IV 
of  this  consolidation  act  contains  the  provisions  of  the 
charter  of  the  municipal  corporation  known  as  the  "city 
and  county  of  San  Francisco,"  which  apply  to  street  work. 


HISTORY    OF    STREET    IMPROVEMENT    ACTS  XXVII 

[Statutes  of  1856,  pages  156-162.]  This  charter  adopted  the 
"front-foot"  principle  of  apportionment,  and  provided  that 
"the  total  amount  of  the  expense  *  *  *  *  shall  be 
assessed  upon  and  borne  with  absolute  equality  by  all  the 
lands  fronting  thereon  and  in  proportion  to  the  frontage,  at 
a  rate  per  front  foot  sufficient  to  cover  such  total  expense 
of  the  work." 

In  1859  the  legislature  passed  an  act  amendatory  of  the 
consolidation  act.  By  this  amendment  the  mode  of  appor- 
tionment of  expense  was  changed  from  the  front-foot  prin- 
ciple to  the  ad  valorem  principle.  This  amendatory  act 
provided  that  the  expenses  "shall  be  assessed  upon  *  *  * 
the  adjacent  lots  and  land  on  each  side  of  the  street.  Each 
lot  or  portion  of  a  lot,  being  assessed  in  proportion  to  the 
assessed  value  of  the  same  according  to  the  assessment  roll 
last  completed." 

In  1861  an  act  was  passed  by  the  legislature  amendatory 
of  the  "consolidation  act"  and  also  of  the  amendatory  act 
of  1859.  By  this  act  of  1861,  the  legislature  returned  to 
the  front-foot  mode  of  apportionment  of  expense, — this 
mode  having  been  found  to  be  the  most  just  and  equitable 
and  satisfactory  in  its  operations.  It  is  the  same  mode  that 
is  now  in  force  under  the  existing  general  street  improve- 
ment act, — the  Vrooman  act  of  March  18,  1885.  [See  infra 
page  1  et  seq.]  This  amendatory  act  of  1861,  provided  that 
the  expense  shall  be  assessed  upon  each  lot  fronting  on  the 
street  "according  to  its  proportion  of  frontage." 

An  amendatory  act  of  1862  amended  article  IV  of  the 
"consolidation  act,"  relating  to  street  work.  This  act, 
while  making  many  changes  in  the  mode  of  procedure,  and 
elaborating  the  provisions  relating  to  the  various  steps  to  be 
taken  by  the  city  to  acquire  jurisdiction  to  do  the  work,  etc., 
did  not  change  the  mode  of  apportionment, — it  continued 
the  front-foot  principle  of  assessment. 

Mr.  Justice  Sawyer,  in  the  case  of  Emery  v.  S.  F. 
Gas  Co.,  28  Gal.  "  373-4,  speaking  of  the  differ- 
ent principles  of  apportionment,  said,  in  the  course 
of  his  opinion,  and  in  respect  to  these  charters 
of  San  Francisco,  and  acts  amendatory  thereof:  "Pos- 
sibly it  might  tend  to  promote  equality  and  justice  to  leave 
to  the  local  communities,  which  have  the  supervision  of 
this  class  of  improvements,  the  discretion  to  adopt  that 
principle  of  apportionment  which  the  exigencies  of  each 
particular  district  designated  for  improvement  may  require. 
In  this  state,  particularly  with  reference  to  the  city  of  San 
Francisco,  nearly,  if  not  quite  all  the  various  modes  of 
apportionment  have  been  tried,  and  among  them  the  ad 


XXVIII  STREET  WORK  LAW INTRODUCTION 

valorem  principle  was  for  several  years  pursued.  Each  was 
in  turn  attacked  as  unjust,  and  abandoned.  Under  the 
first  charter  of  San  Francisco,  (act  of  1850)  one-third  of  the 
expense  was  paid  out  of  the  city  treasury,  and  two-thirds 
'paid  in  equal  proportions  by  the  land  on  both  sides  of  the 
street/  etc.,  but  the  principle  of  apportionment  is  not 
indicated.  Under  the  characters  of  1851  and  1855  the 
apportionment  was  according  to  benefits.  The  great  reform 
charter, — the  consolidation  act  of  1856 — adopted  the  front- 
foot  principle,  and  this  continued  in  force  till  1859,  when 
it  was  amended,  and  an  ad  valorem  apportionment  adopted. 
After  trying  this  system  two  years,  and  after  having  given 
each  principle  a  fair  trial,  in  1861  the  legislature  again 
returned  to  the  front-foot  principle,  which  had  been  in 
force  from  1856  to  1859  the  only  instance  of  a  return  to  a 
principle  once  tried  and  abandoned.  And  finally  in  1862, 
— after  twelve  years  experience — the  present  principle  of 
assessing  upon  the  front-foot  was  continued." 

By  the  amendatory  acts  of  1866  [statutes  of  1865-6,  page 
549],  1868  [statutes  of  1867-8,  page  358)  and  1870,  [statutes 
of  1869-70,  page  890],  article  four  of  the  "consolidation  act" 
and  the  intermediate  amendatory  acts  were  amended  in 
various  particulars.  These  amendments  made  many 
changes  in  the  mode  of  procedure,  but  the  principle  of 
assessment  remained  unchanged,  that  is,  the  expenses  were 
apportioned  and  assessed  according  to  the  front-foot  prin- 
ciple. 

In  1872,  by  an  act  approved  April  1,  1872,  [statutes  of 
1871-2,  page  804]  the  legislature  passed  an  act  repealing 
article  four  of  the  "consolidation  act,"  and  all  acts  amenda- 
tory thereof,  and  "substituting  this  act  [act  of  1872]  for 
said  article  four."  This  act  of  1872  amplified  many  of  the 
provisions  contained  in  the  original  article  four  of  the  con- 
solidation act  and  in  the  acts  amendatory  thereof,  but  con- 
tinued in  force  the  front-foot  principle  of  assessment. 

The  general  street  improvement  act  now  in  force — the  Vroo- 
man  act  of  March  18,  1885, — is  so  similar  to  the  said  act  of 
April  1,  1872,  amending  the  charter  of  the  city  and  county 
of  San  Francisco,  that  it  seems  but  reasonable  to  conclude 
that  this  act  of  April  1,  1872,  furnished  the  model  upon 
which  the  said  general  act  now  in  force  was  patterned. 

In  addition  to  these  charters  of  the  city  of  San  Francisco, 
and  the  acts  above  mentioned  which  are  amendatory  of 
said  charters,  there  were  many  special  acts  passed,  prior  to 
the  present  constitution,  which  related  to  or  provided  for 
work  upon  certain  particular  streets  or  localities  of  the  city. 
Thus,  for  example,  the  legislature  of  1875-6  passed  an  act 


HISTORY  OF  STREET  IMPROVEMENT    ACTS.  XXIX 

entitled  "An  act  to  provide  for  the  opening  and  extending 
of  Leidesdorff  street,  in  the  city  and  county  of  San  Fran- 
cisco." [Statutes  of  1875-6,  page  563.]  Similar  special 
acts  were  passed  by  almost,  if  not  every  legislature,  prior  to 
the  new  constitution,  relative  to  particular  streets  and  local- 
ities in  other  cities  of  the  state.  The  charters  of  each  city 
and  the  acts  amendatory  thereof  were  general  in  their  oper- 
ation within  the  boundaries  of  each  particular  city,  but 
these  last  mentioned  special  acts  applied  specially  to  some 
particular  street  or  locality  within  the  city. 

History  of  the  Street  Improvement  Acts  passed  since  the 
Adoption  af  the  New  Constitution.  Under  the  old  constitu- 
tion it  was  permissible  to  pass  special  and  local  laws-,  such 
as  those  described  supra,  relative  to  street  work  in  the  city 
and  county  of  San  Francisco.  Such  special  and  local  laws 
might  consist  of  acts  providing  charters  for  municipalities 
of  the  state,  or  acts  amendatory  of  such  charters,  or  might 
consist  of  acts  making  provision  for  the  opening  of,  or 
improvement  upon,  some  particular  street  of  some  city. 
But,  under  the  new  constitution — the  constitution  of  1879 — 
the  provisions  of  which  are  expressly  declared  to  be  man 
datory  and  prohibitory  [section  22,  article  I],  the  legisla- 
ture may  not  pass  local  or  special  laws  authorizing  the  lay- 
ing out,  opening,  altering,  maintaining  or  vacating  high- 
ways, streets,  or  alleys,  or  in  any  case  where  a  general  law 
ran  be  made  applicable  [section  25,  article  IV],  and  all  laws 
of  a  general  nature  must  have  a  uniform  operation.  [Sec- 
tion 11,  article  I.]  Since  the  adoption  of  the  new  constitu- 
tion general  laws  have  been  passed  by  our  legislature, 
which,  in  so  far  as  public  improvements  upon  streets,  etc., 
are  concerned,  have  superseded  those  provisions  of  the 
charters  of  the  several  cities  of  the  state  which  relate  to 
street  work,  as  well  as  all  acts  of  special  or  local  legislation 
theretofore  made  applicable  to  these  public  municipal 
improvements.  The  history  of  these  general  laws  passed 
since  the  adoption  of  the  new  constitution  relative  to 
improvements  upon  public  streets  is  as  follows: 

The  first  attempt  to  pass  a  general  law,  (after  the  new 
constitution  went  into  effect)  in  relation  to  municipalities, 
was  what  is  commonly  known  as  the  "  McClure  Charter/' 
This  was  an  act  approved  April  24,  1880,  and  entitled  "An 
act  to  provide  for  the  organization,  incorporation,  and  gov- 
ernment of  merged  and  consolidated  cities  and  counties  of 
more  than  one  hundred  thousand  population,  pursuant  to 
the  provisions  of  section  seven,  of  article  eleven,  of  the  con- 
stitution of  this  state."  This  act  came  before  the  Supreme 
Court  in  the  case  of  Desmond  v.  Dunn,  55  Gal.  242.  The 


XXX  STREET    WORK    LAW INTRODUCTION 

act  in  question  attempted  or  purported  to  provide  a  charter 
or  complete  organic  law  for  all  consolidated  cities  and 
counties  of  more  than  one  hundred  thousand  population — 
although  there  was  but  one  municipal  corporation  in  the 
state  at  the  date  of  the  passage  of  the  act  to  which  it  could 
by  its  terms  apply,  that  is,  the  city  and  county  of  San  Fran- 
cisco. The  courl  held  the  act  to  be  unconstitutional.  It 
was  held,  First:  That  the  act,  even  if  constitutional,  could 
not  take  effect  as  to  the  corporation  known  as  the  city  and 
county  of  San  Francisco,  because  the  constitution,  impliedly 
at  least,  provides  that  cities  incorporated  previously  to  the 
adoption  of  the  constitution,  shall  continue  to  exist  under 
their  existing  acts  of  incorporation,  until  a  majority  of  the 
electors  determine  to  be  organized  under  general  laws,  or 
frame  a  charter  for  their  own  government,  as  provided  by 
sections  6  and  S,  article  XI  of  the  constitution.  Until 
superseded  or  supplanted  by  a  charter  framed  and  adopted 
in  accordance  with  either  of  these  provisions  of  the  consti- 
tion,  all  present  charters  remain  in  full  force  and  effect,  ex- 
cept as  to  such  parts  as  may  come  in  conflict  with  the  consti- 
tution. Second:  In  the  second  place  it  was  held  that  this  act 
known  as  the  "McClure  Charter,"  was  unconstitutional 
because  sections  6  and  7  of  article  XI  of  the  constitution  con- 
template the  enactment  of  general  laws  which  shall  provide 
for  all  municipal  corporations  regardless  of  population  or  the 
character  of  the  municipal  government,  and  not  for  some 
only;  and  such  laws  must  be  as  general  as  the  subject  to 
which  they  relate;  such  general  laws  may  themselves  class- 
ify municipal  corporations  according  to  population,  and 
make  provision  for  each  class,  but  each  law  must  be  general 
enough  to  cover  all  municipal  corporations,  of  whatever 
class.  Held,  therefore,  that  this  act  is  unconstitutional 
because,  1st.  It  excludes  from  its  operation  all  municipal 
corporations,  except  "consolidated  city  and  county  govern- 
ments;" and  2nd,  because  it  is  limited  to  municipal  corpor- 
ations having  more  than  100,000  inhabitants,  and  makes 
no  provision  for  those  having  less  than  that  population. 

'In  1883  by  an  act  approved  March  13, 1883,  the  legislature 
passed  an  act  entitled  "An  act  to  provide  for  the  organization, 
incorporation  and  government  of  municipal  corporations." 
[Statutes  1883,  page  93.]  This  act  of  March  13, 1883,  commonly 
called  the  "Municipal  Incorporation  Act,"  "is  in  harmony 
with,  and  passed  in  obedience  to  the  provisions  of  section 
6,  article  XI,  of  the  constitution."  [Ex  parte  Campbell,  74 
Cal.  26.]  By  this  act,  and  the  municipal  classification  act 
of  March  2,  1883,  [statutes  1883,  page  24],  the  municipali- 
ties of  the  state  were  divided  into  six  classes  according  to- 


HISTORY    OF    STREET    IMPROVEMENT    ACTS  XXXI 

population,  and  a  complete  charter  provided  for  cities  of 
each  class,  electing  to  be  incorporated  thereunder,  that  is  to 
say,  a  charter  for  cities  of  the  first  class  (cities  having  a 
population  of  more  than  100,000),  a  charter  for  cities  of  the 
second  class  (cities  having  a  population  of  more  than 
30,000  and  not  exceeding  100,000),  etc. 

This  municipal  incorporation  act  of  March  13,  1883, 
provides  that  "any  portion  of  a  county  containing 
not  less  than  five  hundred  inhabitants,  and  not  incor- 
porated as  a  municipal  corporation,  may  become  incor- 
porated under  the  provisions  of  this  act,  and 
when  so  incorporated,  shall  have  the  powers  con- 
ferred, or  that  may  hereafter  be  conferred  by  law  upon 
municipal  corporations  of  the  class  to  which  the  same  may 
belong."  Such  territory  is  incorporated  as  a  municipal 
corporation  of  the  class  to  which  it  belongs  when  a  majority 
of  the  votes  cast  at  the  election  held  for  that  purpose  are 
for  incorporation.  The  same  act  also  provides  that  "any 
city  and  county,  city 'or  town,  organized  or  incorporated 
prior  to  the  first  day  of  January,  eighteen  hundred  and 
eighty,  at  twelve  oclock  meridian"  may  become  re-organized 
and  re-incorporated  under  the  provisions  of  said  act,  upon 
the  proper  steps  being  taken  therefor.  This  is  in  accor- 
dance with  that  provision  of  the  constitution  [section  6, 
article  XI]  which  provides  that  "cities  and  towns  heretofore 
organized  or  incorporated  may  become  organized  under 
such  general  laws  [that  is  general  laws  providing  for  the 
incorporation,  organization  and  classification  of  cities  and 
towns]  whenever  a  majority  of  the  electors  voting  at  a  gen- 
eral election  shall  so  determine."  This  is  one  of  the  modes 
pointed  out  by  Justice  Myrick  in  his  concurring  opinion 
in  the  case  of  Desmond  v.  Dunn,  55  Cal.  253,  whereby 
cities  and  towns  may  be  incorporated.  But,  until  the  peo- 
ple of  a  city  or  town,  incorporated  prior  to  the  1st  day  of 
January,  1880,  or  the  people  of  any  portion  of  a  county,  deter- 
mine to  become  organized  under  a  general  municipal  incor- 
poration law,  such  as  the  municipal  incorporation  act  of  March 
13,  1883,  and  until  a  majority  of  the  electors  vote  therefor, 
the  provisions  of  such  general  municipal  incorporation  act 
do  not  apply  to  such  city  or  town,  or  territorial  portion  of 
a  county.  Therefore  there  are  but  few  cities  or  towns  in 
this  state  to  which  the  provisions  of  the  municipal  incor- 
poration act,  approved  March  13,  1883,  apply.  [See  In  re 
Guerrero,  69  Cal.  100.]  Consequently  the  provisions  of 
that  act  need  not  be  regarded  save  in  those  few  cities  or 
towns,  which  being  incorporated  prior  to  January  1st,  1880, 
have  elected  to  re-incorporate  under  that  act,  or  those  cities 


XXXII  STREET    WORK    LAW INTRODUCTION 

and  towns,  which,  coming  into  existence  since  the  new 
constitution  took  effect,  have  been  organized  under  said 
act  of  March  13,  18S3;  and  even  as  to  such  cities  and  towns, 
the  provisions  of  the  general  street  improvement  and  street 
opening  acts,  passed  since  the  passage  of  said  municipal 
incorporation  act  of  March  13,  1883,  are  controlling  where 
inconsistent  with  the  provisions  of  the  said  municipal 
incorporation  act,  but  when  not  inconsistent  the 
provisions  of  the  latter  act, — the  municipal  incor- 
poration act, — even  in  respect  to  street  work  may 
be  applicable  in  those  cities  and  towns  which 
have  incorporated  thereunder.  Thus  in  Capron  v.  Hitch- 
cock, decided  June  3,  1893,  33  Pac.  Rep.  431,  it  was  held 
that  no  valid  assessment  can  be  made  for  street  work  done 
under  the  general  street  improvement  act — the  Vrooman  act 
of  March  18,  1885, — if  the  contract  therefore  is  void  under 
section  628  of  the  municipal  incorporation  act  of  March  13, 
1883,  providing  that  no  officer  of  a  city  of  tfie  fourth  class, 
organized  under  said  act,  shall  be  interested  in  a  contract 
to  which  the  city  is  a  party,  and  that  any  contract  contrary 
to  the  provisions  thereof  shall  be  void:  held,  further,  that 
the  said  municipal  incorporation  act  of  March  13,  1883 — 
section  628 — forbidding  any  officer  of  a  city  of  the  fourth 
class  to  be  interested  in  a  contract  with  the  city,  is  not 
impliedly  repealed  by  section  5  of  the  general  street 
improvement  act — the  Vrooman  act  of  March  18,  1885 — 
providing  that  under  certain  circumstances  a  street  con- 
tract shall  be  awarded  to  the  owners  of  a  majority  of  the 
frontage  on  the  street  to  be  improved. 

In  this  case,  the  action  was  brought  by  plaintiff 
to  enforce  the  lien  of  an  assessment  on  the  lot  of 
defendant  in  the  city  of  San  Diego,  for  street  work 
alleged  to  have  been  done  by  plaintiff  under  a  con- 
tract awarded  to  him  by  the  city  council  of  San  Diego, 
and  executed  on  the  part  of  the  city  by  the  superintendent 
of  streets.  At  all  the  times  mentioned  in  plaintiff  Js  com- 
plaint the  city  of  San  Diego  was  a  municipal  corporation 
of  the  fourth  class  organized  and  existing  under  said  gen- 
eral municipal  incorporation  act  of  March  13,  1883,  and 
plaintiff,  to  whom  said  contract  to  do  said  street  work  was 
awarded  as  aforesaid,  was  a  school  trustee  of  said  city  of 
San  Diego,  duly  elected,  qualified  and  acting  as  such 
school  trustee  for  the  third  ward  of  said  city  of  San  Diego, 
held,  that,  for  the  reasons  given  above, — i.  e.  because  of  the 
lettingof  the  contract  to  plaintiff,  was  violative  of  said  provi- 
sion of  section  628  of  the  municipal  corporation  act,  under 


HISTORY    OP    STREET    IMPROVEMENT    ACTS  XXXIII 

which  the  municipality  was  incorporated, — the  contract  was 
void,  and  plaintiff  could  not  recover. 

Cities  and  towns  incorporated  under  the  general 
municipal  incorporation  act  of  March  13,  1883,  have 
for  their  charter  the  provisions  of  such  act  applicable 
to  the  particular  class  of  cities  or  towns  to  which 
such  cities  and  towns  belong.  If  any  provisions  of  this 
general  act,  applicable  to  street  improvements  and  not 
inconsistent  with  the  provisions  of  the  general  street 
improvement  act — the  Vrooman  act  of  March  18,  1885, — 
be  in  force  in  cities  and  towns  incorporated  under  said 
municipal  incorporation  act,  and  if  such  provisions  may  be 
applied  in  street  improvement  proceedings, — provisions 
relative  to  the  qualifications  of  the  contractor,  for  example — 
then  it  is  difficult  to  perceive  why  similar  provisions  in  the 
charters  of  other  cities  and  towns,  freeholders  charters  for 
example,  should  not  in  like  manner  be  applied  to  and  govern 
in  street  improvement  proceedings.  The  Vrooman  act  of 
March  IS,  1885,  may  have  entirely  superseded  all  provi- 
sions in  the  general  municipal  incorporation  act  bearing 
directly  upon  the  subject  of  street  improvements,  and  may 
in  like  manner  have  superseded  all  charter  provisions 
bearing  directly  upon  the  subject  of  street  improvements, 
and  yet  other  provisions  of  said  general  municipal  incor- 
poration act  or  of  such  charters,  not  directly  relating  to  the 
subject  of  street  improvements,  but  which,  nevertheless, 
may  be  applicable  in  street  improvement  proceedings, — 
provisions  prescribing  the  qualifications  of  contractors,  for 
example,  as  that  no  officer  of  the  city  shall  be  interested  in 
any  contract  with  the  city — may  perhaps  be  properly 
applied  to  and  govern  in  all  proceedings  relating  to  street 
improvements.  This  conclusion  seems  warranted  by  the 
decision  in  Capron  v.  Hitchcock,  supra.  In  other  words,  if 
Capron  v.  Hitchcock  is  authority  for  the  proposition  that 
any  part  of  the  general  municipal  incorporation  act  is 
controlling  in  street  work  proceedings,  in  cities  incorporated 
under  said  act,  then,  by  a  parity  of  reasoning,  it  must  like- 
wise be  authority  for  the  proposition  that  similar  provisions 
in  the  charters  of  cities,  incorporated  under  special  or  free- 
holders charters,  are  in  like  manner  applicable  to  street 
work  proceedings. 

It  is  provided  by  section  6,  article  XI  of  the  constitution 
that  "cities  or  towns  heretofore  or  hereafter  organized,  and  all 
charters  thereof  framed  or  adopted  by  authority  of  this 
constitution,  shall  be  subject  to  and  controlled  by  general 
laws."  Mr.  Justice  McKinstry,  in  his  dissenting  opinion  in 
the  case  of  Thomason  v.  Ashworth,  73  Cal.  85,  says:  "  On 


XXXIV  STREET    WORK   LAW INTRODUCTION 

the  13th  of  March,  1883,  (seven  days  after  the  approval  of 
the  act  '  to  provide  for  the  improvement  of  streets,  etc., 
within  municipalities')  an  act  was  approved  entitled 'An 
act  to  provide  for  the  organization,  incorporation  and  gov- 
ernment of  municipal  corporations.'  [That  is  to  say,  the 
first  Vrooman  act,  approved  March  6th,  1883,  was  approved 
seven  days  before  the  approval  of  the  "  municipal  incorpo- 
ration act,"  which  was  approved  March  13th,  1883.]  The 
last  act  [that  is,  the  municipal  incorporation  act  of  March 
13,  1883]  is  a  general  statute,  providing  for  the  incorpora- 
tion, organization,  classification  and  government  of  cities 
and  towns,  and  was  unquestionably  intended  to  be  a 
compliance  with  the  mandate  of  the  first  clause  of  section  6, 
article  XI  of  the  constitution.  It  provides  for  the  election  of 
a  superintendent  of  streets,  and  prescribes  his  duties,  which 
are  such  as  the  title  of  his  office  would  imply.  Amongst  the 
powers  of  the  municipal  council  is  enumerated  the  power  of 
opening,  altering,  constructing,  repairing,  etc.,  streets,  high- 
ways, etc.,  and  in  subsequent  sections  is  supplied  an  entire 
scheme  for  rstreet  work.'  If  both  these  statutes  [that  is,  the 
municipal  incorporation  act,  approved  March  13,  1883,  and 
the  Vrooman  act,  approved  March  6,  1883]  were  valid,  the 
provisions  of  the  act  of  March  13  were  substituted  for  those 
of  the  act  of  March  6,  1883 — at  least  so  far  as  street  work 
done  in  cities  and  towns  organized  under  the  act  of  March 
13  is  concerned.  *  *  *  But  the  act  of  J885  [i,  e.,  the 
Vrooman  act,  approved  March  18,  1885 — statutes  of  1884-5, 
page  147]  was  an  amendment  of  the  act  of  March  13,  1883, 
[the  ''municipal  incorporation  act"]  or  an  entire  revision  and 
consequent  repeal  of  those  provisions  of  that  act  relating  to  'work 
upon  streets,  alleys,'  etc.,  within  'municipalities  formed  under 
the  general  law.  *  *  *  It  was  a  substitution  of  one  system 
of  street  work  for  another  system.  If  operative  at  all,  it 
made  an  end  of  the  provisions  of  the  general  law  of  1883 
relating  to  street  work."  [That  is  to  say,  if  operative  at  all, 
it  made  an  end  of  those  provisions  of  the  "municipal  incor- 
poration act"  which  related  to  and  regulated  street  work.] 

However,  these  observations  of  the  learned  justice  from 
whose  opinion  they  are  quoted,  are  not  entirely  compatible 
with  the  subsequent  decision  of  the  Supreme  Court  in  said 
case  of  Capron  v.  Hitchcock,  cited  supra,  although  it  may 
be  said  of  the  decision  in  this  latter  case,  that  it  was  not 
held  that  any  part  of  the  general  municipal  incorporation 
act,  relating  directly  to  street  work,  was  in  force,  but  that  a 
very  salutary  provision,  limiting  the  powers  of  officers  of 
the  municipality  to  enter  into  contracts  generally  to  which 
the  city  is  a  party,  was  not  inconsistent  with  any  provision 


X 

(UNIVERSITY  / 

HISTORY    OK     STEEET    IMPROVEMENT    ACTS  XXXV 

of  the  general  street  improvement  act — the  Vrooman  act  of 
March  18,1885 — and  was  in  full  force  in  cities  incorporated 
under  said  municipal  incorporation  act,  notwithstanding 
anv  of  the  provisions  of  said  general  street  improvement  act 
of  March  IS,  1885. 

See,  also  in  this  connection,  the  language  of  Mr.  Com- 
missioner Belcher,  in  Anderson  v.  De  Urioste,  96  Cal.  405, 
when  the  learned  commissioner  said:  "The  act  of  March 
IS,  1885,  was  a  general  street  law,  and  was  in  force  in  the 
city  and  county  of  San  Francisco  from  the  date  of  its  pas- 
sage. [Thomason  v.  Ashworth,  73  Cal.  74.]  li  therefore, 
as  to  all  matters  provided  /or,  superseded  the. consolidation  act 
and  became  the  governing  law  of  the  city."  While,  however, 
it  is  quite  probable,  as  stated  by  Mr.  Commissioner  Belcher, 
that  this  general  street  law  of  March  18,  1885,  superseded 
all  charter  provisions  providing  for  street  work,  in  cities 
having  "freeholders'  charters,"  or  charters  granted  by 
special  enactment  prior  to  the  new  constitution, — the  con- 
solidation act  of  San  Francisco,  for  example, — still,  it  is 
also  quite  probable  that  in  these  cities,  as  in  municipalities 
incorporated  under  the  general  municipal  corporation  act, 
such  charter  provisions  as  do  not  directly  relate  to  or  pro- 
vide for  street  work,  but  which,  nevertheless,  are,  in  the 
nature  of  things,  capable  of  being  applied  to  street  work 
proceedings,  will  be  so  applied,  when  not  inconsistent  with 
any  provision  of  the  said  general  street  improvement  act, 
— such  general  charter  provision,  for  example,  as  prescribe 
generally  the  qualifications  of  persons  entering  into  con- 
tracts with  the  city.  But,  as  to  all  provisions  of  these 
charters,  relating  directly  to  and  making  express  provisions 
for  street  work,  it  is  undoubtedly  correct  to  conclude  that 
all  of  these  charter  provisions  have  been  superseded  by 
the  general  street  improvement  act  of  March  18,  1885, — 
the  Vrooman  act. 

The  act  known  as  the  "Vrooman  act  of  1883"  was 
approved  March  6,  1883 — seven  days  prior  to  the  municipal 
incorporation  act.  This  act,  approved  March  6,  1883,  com- 
monly known  as  the  "  Vrooman  act  of  1883,"  is  entitled, 
"An  act  to  provide  for  the  improvement  of  streets,  lanes, 
alleys,  courts,  places  and  sidewalks,  and  the  construction  of 
sewers  within  municipalities."  [Statutes  of  1883,  page  32.] 
It  takes  its  name  from  its  putative  author,  Senator  Vroo- 
man of  Alameda  county,  by  whom  the  bill  was  introduced 
in  the  senate  at  the  session  of  the  legislature  held  in  1883. 
The  same  senator,  at  the  session  of  the  legislature  held  in 
1885,  likewise  introduced  the  bill  which  subsequently 
became  the  general  street  improvement  act  of  March  18, 


XXXVI  STREET  WORK  LAW INTRODUCTION 

1885,  the  general  street  improvement  act  now  in  force  in 
the  municipalities  of  the  state,  the  provisions  of  which  are 
to  be  found  post,  pages  1-216.  These  two  acts  may  be 
designated  respectively  as  the  first  and  second  Vrooman 
acts,  or,  as  the  "Vrooman  act  of  1883,"  and  the  "Vrooman 
act  of  1885."  The  latter  act,  the  "  Vroornan  act  of  1885," 
expressly  repealed  the  former  act — the  "  Vrooman  act  of 
1883." 

The  act  of  March  6,  1883,  known  as  the  first  Vrooman 
act,  or  Vrooman  act  of  1883,  constituted  a  complete  system 
of  street  work.  At  the  date  of  the  passage  and  approval  of 
this  act,  the  constitution  [section  19,  article  XI]  provided 
that  "  no  public  work  or  improvement  of  any  description 
whatsoever  shall  be  done  or  made,  in  any  city,  in,  upon,  or 
about  the  streets  thereof,  or  otherwise,  the  cost  and  expense 
of  which  is  made  chargeable,  or  may  be  assessed  upon,  pri- 
vate property  by  special  assessment,  unless  an  estimate  of 
such  cost  and  expense  shall  be  made,  and  an  assessment  in 
proportion  to  benefits,  on  the  property  to  be  affected  or  bene- 
•fited,  shall  be  levied,  collected  and  paid  into  the  city  treas- 
ury before  such  work  or  improvement  shall  be  commenced, 
or  any  contract  for  letting  or  doing  the  same  authorized  or 
performed."  To  meet  the  requirements  of  this  provision  of 
the  constitution,  the  said  act  of  March  6,  1883 — the  Vroo- 
man act  of  1883 — provided  that  an  assessment  should  be 
levied  according  to  benefits,  and  that  the  city  council  should 
proceed  to  award  the  contract  for  the  work  and  improve- 
ment, after  receiving  notice  from  the  city  treasurer  that 
sufficient  money  has  been  received  by  the  treasurer,  on 
account  of  any  such  assessment,  to  pay  the  estimated  costs 
and  expenses  of  such  work  and  improvement,  for  the  pay- 
ment of  which  such  assessment  was  levied  and  collected. 
The  act  of  April  1,  1872  [statutes  1871-2,  p.  804J  providing 
for  work  upon  streets  in  the  city  and  county  of  San  Fran- 
cisco, was  very  similar,  in  its  general  aspects,  to  the  present 
general  street  improvement  act—the  Vrooman  act  of  March 
18,  1885,  post,  pp.  1-216.  Like  the  present  general  street 
improvement  act,  the  said  San  Francisco  street  improvement 
act  of  April  1,  1872,  adopted  the  "  front  foot"  principle  of 
assessment,  and  provided  that  the  assessments  should  be 
levied  after  the  execution  of  the  contract,  and  after  the  work 
had  been  fulfilled  to  the  satisfaction  of  the  superintendent 
of  streets.  [Section  9  of  act  of  April  1,  1872,  stats.  1871-2, 
p.  813.]  In  McDonald  v.  Patterson,  54  Cal.  245,  it  was  held 
that  the  provisions  of  section  19  of  article  XI  of  the  consti- 
tution, as  originally  adopted,  the  provisions  of  which  are 
quoted  supra,  providing  that  an  estimate  of  the  cost  and 


HISTOKY  OF  STREET  IMPROVEMENT    ACTS.  XXXVII 

expense  shall  be  made,  and  an  assessment  levied  and  col- 
lected before  the  letting  of  the  contract,  is  not  a  provision 
which  requires  legislation  to  enforce  it;  and  that  the  provi- 
sions of  said  act  of  April  1. 1872,  relating  to  street  improve- 
ments in  San  Francisco,  which  authorize  the  superintend- 
ent of  streets  to  execute  contracts  for  such  improvements — 
in  advance  of  the  levy  and  collection  of  the  assessment — are 
inconsistent  with  said  section  of  the  constitution,  as  it  then 
stood,  and  ceased  to  be  operative  on  the  1st  day  of  January, 
1880.  In  other  words,  as  said  by  Mr.  Justice  McKinstry  in 
his  dissenting  opinion  in  People  v.  Henshaw,  76  Gal.  453, 
when  the  constitution  of  1871)  went  into  effect  the  vital  parts 
of  the  San  Francisco  street  work  act  of  April  1,  1872,  were 
"struck  dead,"  and  some  act  such  as  the  first  Vrooman  act 
— the  Vrooman  act  of  March  6,  1883 — was  necessary  to 
enable  the  municipalities  of  the  state,  whose  charter  provi- 
sions had  thus  been  "  struck  dead,"  to  proceed  with  their 
street  improvements  until  the  constitution  could  be  amended 
by  the  repeal  of  said  provisions  of  section  19  of  article 
XL  Accordingly  the  said  Vrooman  act  of  March  6,  1883, 
was  drawn  conformably  to  said  requirements  of  section  19 
of  article  XI  of  the  constitution,  and  was  passed  by  the  leg- 
islature at  its  session  in  1883.  The  decision  in  McDonald 
v.  Patterson,  supra,  wa<$  rendered  by  the  court  in  depart- 
ment. It  was  subsequently  re-affirmed,  however,  by  the 
court  in  bank  in  Donahue  v.  Graham,  61  Cal.  276,  Justices 
McKinstry  and  Sliarpstcin  dissenting.  At  the  same  session 
in  which  it  passed  the  said  Vrooman  act  of  March  6,  1883, 
the  legislature  proposed  an  amendment  to  the  constitution 
abrogating  the  requirement  of  the  constitution  above  quoted, 
viz.,  the  first  sentence  of  section  19,  article  XI.  By  said 
proposed  amendment,  said  first  sentence  of  section  19,  arti- 
cle XI,  referring  to  public  work,  was  entirely  omitted  and 
dropped  from  the  constitution.  [See  statutes  of  1883,  page 
2.]  This  proposed  amendment  was  adopted  by  the  people 
at  the  general  election  in  1884,  and,  if  the  amendment  was 
properly  proposed  by  the  legislature,  the  constitution  was 
duly  amended  in  this  particular,  and  the  constitution,  after 
the  adoption  by  the  people  of  said  proposed  amendment, no 
longer  required  the  assessment  to  be  in  proportion  to  "ben- 
efits," or  to  be  levied  and  collected  prior  to  the  commence- 
ment of  the  work,  or  the  awarding  of  the  contract. 

In  1885  the  legislature  passed  the  second  Vrooman  act, 
— the  Vrooman  act  of  March  18,  1885, — entitled  "An  act 
to  provide  for  work  upon  streets,  lanes,  alleys,  courts, 
places  and  sidewalks,  and  for  the  construction  of  sewers 
within  municipalities."  This  act  was  approved  March 


XXXVIII  STREET    WORK    LAW INTRODUCTION 

18,  1885.  It  expres°ly  repealed  the  first  Vrooman  act, — • 
the  Vrooman  act  of  March  6,  1883,  — and  like  the  latter 
it  contains  within  itself  a  complete  system  for  street  work. 
It  differs  mainly  from  the  Vrooman  act  of  1 S83  in  this  that 
it  provides  for  the  levy  and  collection  of  the  assessment 
after  the  letting  of  the  contract  and  the  completion  of  the 
work,  and  adopts  the  "front-foot"  principle  of  assessment 
instead  of  apportioning  the  expenses  according  to  the  "bene- 
fits," [statutes  of  1885  page  1 47,]  and,  if  the  said  proposed  con- 
stitutional amendment,  abrogating  said  requirements  of 
section  19  of  article  XI  of  the  constitution,  was  properly 
submitted  to  the  people,  and  adopted  by  them  at  the  gen- 
eral election  in  1884,  as  aforesaid,  then  said  Vrooman  act 
of  March  18,  1885,  repealed  the  first  Vrooman  act, — the  act 
of  March  6,  1883, — and  from  the  time  of  its  passage  has 
been  the  street  improvement  act  in  force  in  the  municipali- 
ties of  this  state. 

These  two  acts, — the  Vrooman  act  of  1883  and  the  Vroo- 
man act  of  1885, — came  before  the  Supreme  Court  in  the 
case  of  Thomason  v.  Ruggles,  69  Cal.  4P5.  Four  of  the 
justices,  viz.,  JJ.  Myrick,  Ross,  Morrison  and  McKee, 
held  that  the  act  of  April  1,  1872,  relating  to  street 
improvements  in  the  city  and  county  of  San  Francisco, 
in  so  far  as  it  authorized  the  doing  of  street  work  before  a 
levy  and  collection  of  an  assessment,  was  repealed  by  sec- 
tion 19  of  article  XI  of  the  constitution.  Three  of  said  four 
justices,  viz.,  JJ.  Myrick,  Ross,  and  Morrison,  held :  1st.  That 
the  amendment  to  the  constitution  adopted  by  the  people  Nov- 
ember 4,  1884,  dispensing  with  the  necessity  of  such  pre- 
vious levy  and  collection  of  assessment,  was  constitutionally 
adopted.  [Two  of  the  justices — McKee  and  Thornton — held 
that  the  failure  to  enter  the  proposed  amendment  at  large 
in  the  journals  of  the  senate  and  assembly  during  its  pro- 
gress through  the  legislature,  was  in  violation  of  section  1 
of  article  18  of  the  constitution,  and  that  therefore  the 
proposed  amendment  never  took  effect — see  opinion  of 
McKee,  J.,  in  this  case  and  his  concurring  opinion  in  Oak- 
land Paving  Co.  v.  Hilton,  69  Cal.  479,  also  opinion  of 
Thornton,  J.,  in  said  last  mentioned  case.]  2nd.  That  said 
act  of  April  1,  1872,  repealed  by  said  section  19,  article  XI  of 
the  constitution,  as  originally  adopted,  was  not  revived  by 
said  amendment  dispensing  with  the  said  requirements  of  said 
section  19  of  article  XI.  3rd.  That  the  second  Vrooman 
act, — the  act  of  March  18,  1885, — providing  for  street  work 
in  municipalities,  and  repealing  the  act  of  March  6,  1883, 
[the  first  Vrooman  act]  was  a  general  law  within  the  mean- 
ing of  the  constitution;  was  conformable  to  the  constitution 


THE    VROOMAN    ACT    OF    1885  XXXJX 

as  amended  by  said  amendment  of  November  4,  1884,  and 
as  a  general  law  was  in  force  in  all  the  municipalities  of 
the  state.  [See  also  Oakland  Paving  Co.  i\  Hilton,  69  Gal.  479 
and  People  v.  Henshaw,  76  Cal.  436.] 

In  Oakland  Paving  Co.  v.  Tompkins,  72  Cal. 
5,  it  was  decided  by  the  court  in  bank,  Mr. 
Justice  Thornton  alone  dissenting,  that  section  1 
of  article  XVIII  of  the  constitution,  providing  that  proposed 
amendments  to  the  constitution  shall  be  entered  in  the 
journals  of  the  senate  and  assembly,  does  not  require  a 
proposed  amendment  ta  be  copied  at  large  in  the  journals, 
a  reference  to  it  by  title  and  number  being  sufficient;  and 
that  therefore  said  amendment  to  section  19  of  article  XI, 
adopted  by  the  people  November  4,  1884,  dispensing  with 
the  necessity  of  previous  levy  and  collection  of  assessment, 
was  constitutionally  adopted.  In  this  case  the  point  was 
squarely  presented,  was  plainly  and  unequivocally  decided, 
and  was  completely  removed  from  the  realm  of  doubt. 

Finally,  in  the  case  of  Thomason  v.  Ash  worth,  73  Cal.  73, 
all  question,  as  to  what  law  was  in  force,  relative  to  street 
improvement  work,  was  put  an  end  to.  Mr.  Justice  Thorn- 
ton delivered  the  opinion  of  the  court.  The  opinion,  as 
well  as  the  judgment  was  concurred  in  by  three  of  the 
other  justices,  making  the  constitutional  number,  four, — 
requisite  to  the  pronouncing  of  a  judgment  in  bank. 

It  was  held  in  that  case: 

1st.  That  the  act  of  April  1,  1872,  in  so  far  as  it  con- 
flicted with  the  provisions  of  section  19  of  article  XI  of  the 
constitution,  as  that  section  of  the  constitution  originally 
stood,  was  repealed  by  said  section  19  of  article  XI. 

2nd.  That  afterwards  said  act  of  April  1,  1872,  was 
entirely  repealed  by  the  act  of  March  6,1883, — the  first 
Yroniuaii  act, — providing  for  the  improvement  of  streets, 
lanes,  etc. 

•>r<L  That  said  section  19  of  article  XI  of  the  constitu- 
tion of  1879,  providing  that  no  street  work  should  be  made 
until  after  the  assessment  had  been  levied  and  collected, 
was  repealed  by  the  amendment  adopted  by  the  people  at 
the  general  election  in  1884. 

4tlt.  That  the  act  of  March  18,  1885, — the  second  Vroo- 
nian  act,  or  Vrooman.  act  of  1885, — repealed  the  Vrooman 
act  of  1883  on  the  same  subject. 

5th.  That  these  acts  of  March  6,  1883,  and  March  18, 
1885,  are  general  laws,  within  the  meaning  of  section  6  of 
article  XI  of  the  constitution,  affecting  all  municipal  corpo- 
rations in  the  state,  and  were  within  the  powers  of  the  leg- 
islature to  enact,  and  that  the  provisions  of  such  general 


XL  STREET    WORK    LAW INTRODUCTION 

laws  are  paramount  to  the  provisions  of  the  charter  of  any 
city  in  the  state  upon  the  same  subject  matter. 

The  prevailing  opinion  of  the  court  concludes  as  follows: 
"  It  follows  from  the  above,  (1.)  That  the  act  of  1872  was 
entirely  done  away  with  by  the  constitution;  (2.)  That  the 
act  of  1883  was  constitutional  when  passed,  and  repealed  all 
portions  of  the  act  of  1872  in  conflict  with  it;  (3.)  That  the 
act  of  1885  is  a  constitutional  act  under  the  constitution  as 
amended;  that  the  act  of  1885  repealed  the  act  of  1883,  and 
has  been  and  is  now  in  force  since  its  passage  on  the  eighteenth 
day  of  March,  1885."  Mr.  Justice  Thornton,  in  giving  the 
opinion  of  the  court,  said,  page  78:  "It  is  argued  that, 
according  to  the  views  herein  expressed,  a  city  may  have  its 
charter  totally  changed  without  its  consent.  This  is  a 
proper  deduction  from  the  ruling  herein,  but  this  cannot  be 
done  by  a  special  or  local  law  applicable  alone  to  a  particu- 
lar charter.  The  result  can  only  be  reached  by  a  general 
law  affecting  all  municipal  corporations,  or  may  be  all  of  a 
class,  and  we  can  see  no  probability  that  a  city  can  be 
injured  by  general  legislation."  [See  also  Davies  v.  City  of 
Los  Angeles,  86  Gal.  37.] 

Therefore,  unless  the  act  of  March  18,  1885,  has  been 
repealed  or  amended,  it  is  in  full  force  and  effect  throughout 
the  length  and  breadth  of  the  state,  and  all  street  work  pro- 
vided for  by  the  provisions  of  said  act  must  be  done  under 
and  pursuant  to  its  provisions  in  every  municipality  of  the 
state.  Has  it  been  repealed  or  amended?  It  has  been 
amended  by  the  legislature  at  each  of  its  sessions  since 
1885. 

Since  its  original  passage  and  approval,  March  18/1885, 
the  Vrooman  act  of  1885  has  been  amended  as  follows: 

1887:  By  an  act  approved  March  15,  1887,  [statutes 
1887,  page  148]  section  32  was  amended. 

1889:  By  an  act  approved  March  14,  1889,  [statutes 
1889,  page  157]  sections' 2,  3,  4,  5,  7,  8,  9,  12,  13,  19,  24,  26, 
34  and  37  were  amended,  and  a  new  section,  called  section 
121,  relating  to  payment  for  work  in  installments,  was  added 
thereto.  This  act  of  March  14,  1889,  likewise  purported  to 
amend  section  35,  though  no  mention  was  made  of  it  in  the 
title  to  the  act.  Some  of  the  sections  amended  by  this  act 
of  March  14,  1889,  have  been  amended  by  subsequent  acts. 

1891:  (a!)  By  an  act  approved  March  17,  1891,  [stat- 
utes 1891,  page  116]  it  was  amended  or  attempted  to  be 
amended,  by  adding  thereto,  an  additional  part,  numbered 
part  IV,  and  consisting  of  seven  new  sections,  numbered 
respectively,  38,  39,  40,  41,  42,  43  and  44,  relative  to  a 
system  of  street  improvement  bonds.  This  act  of  March 


THE    VKOOMAN    ACT    OK    1885  XL  I 

17,    1891,    was    repealed    by    the    bond  act  of  February  27> 
1893. 

(b.)  By  an  act  approved  March  31,  1891,  [statutes  1801, 
page  196]  sections  2,  3,  4,  5,  7,  9,  24,  26,  34,  35  and  37  were 
amended. 

(c.)  By  an  act  approved  March  31,  1891,  [statutes  1.S01, 
page  4G1J  sixteen  new  and  additional  sections  numbered, 
respectively,  sections  38,  39,  40,  41,  42,  43,  44,  45,  46,  47,  48, 
49,  50,  51,  52  and  53  were  added.  These  sixteen  new  sec- 
tions  thus  added  to  the  Vrooman  act  by  said  amendatory 
act  of  March  31,  1891,  purport  to  empower  the  city  councils 
to  change  the  grade  of  any  street,  the  official  grade  of 
which  has  been  already  established,  and  provide  the 
machinery  for  accomplishing  this  purpose.  These,  sixteen 
new  and  added  sections  should  be  read  in  connection  with 
section  2  of  the  act  as  amended  in  1893.  Since  said  sec- 
tion 2  as  amended  in  1893,  [act  of  March  11,  1893,  statutes 
1  Si):>,  page  172]  provides  that  ''whenever  the  grade  of  a  street, 
avenue,  etc.,  shall  hereafter  be  changed,  the  petition  of  the 
owners  of  a  majority  of  the  feet  fronting  thereon,  asking 
for  grading  the  same  to  the  new  grade,  shall  be 
a  condition  precedent  to  the  ordering  of  such  grading  to  be 
done."  « 

1893:  (a.)  By  an  act  approved  February  27, 1893,  [statute*, 
1893,  page  33]  commonly  known  as  the  street  improvement 
bond  act,  provision  was  made  for  the  issuance  of  serial  bonds 
representing  the  cost  of  any  work  or  improvement  provided 
f<>r  by  the  Vrooman  act  of  1885.  This  bond  act  of  Febru- 
ary 27,  1893,  repeals  the  said  act  of  March  17,  1891,  by 
which  a  new  part,  numbered  part  IV,  and  including  seven 
new  sections,  sections  38  to  44,  inclusive,  was  added  to  the 
Vrooman  act  of  1885.  Said  act  of  March  17,  1891,  by 
which  said  part  IV  was  added,  or  attempted  to  be  added, 
to  the  Vrooman  act  of  1885,  was  likewise  an  act  to  provide 
a  system  of  street  improvement  bonds.  It  did  not  stand 
alone,  but  purported  to  amend  the  Vrooman  act  of  1885, 
"by  adding  thereto  an  additional  pprt  numbered  four,  con- 
sisting of  sections  38,  39,  etc.,  relative  to  a  system  of  street 
improvement  bonds."  Whereas  the  said  bond  act  of  Feb- 
ruary 27,  1893,  by  which  the  bond  act  of  March  17,  1891, 
was  superseded  and  repealed,  does  not  purport  in  terms  to 
amend  the  Vrooman  act  of  1885.  In  form  it  stands  alone, 
but,  in  effect,  it  is  at  least  supplementary  to  the  Vrooman 
act  of  March  18,  1885,  and  it  is  a  question  whether  it  does 
not,  also,  in  effect  and  for  the  accomplishment  of  its  own 
purposes,  amend  the  Vrooman  act  of  1885. 

(b.)     By  an  act  approved  March  9,  1893,    [statutes    1893, 


XLIT  STREET    WORK   LAW INTRODUCTION 

page  89]  the  legislature  passed  an  act  entitled  "An  act  to 
amend  sections  38  to  53,  inclusive,  of  an  act  approved 
March  31,  1891,  adding  those  sections  to  'an  act  to  provide 
for  work  upon  streets,  alleys,  lanes,  courts,  places  and  side- 
walks, and  for  the  construction  of  sewers  within  municipal- 
ities' approved  March  18,  1885." 

(c.\  By  an  act  approved  March  11,  1893,  [statutes  1893 
page  172]  sections  2,  24  and  37  of  the  Vrooinaii  act  of  1885 
were  amended. 

The  act,  therefore,  under  which  improvements  upon 
opened  or  dedicated  public  streets,  lanes,  alleys,  courts  or 
places,  is  to  be  performed,  in  the  municipalities  of  this  state, 
and  under  which  sidewalks  and  sewers  are  to  be  con- 
structed, is  the  Vrooman  act  of  March  18,  1885,  as  the 
same  has  been  amended  by  the  said  amendatory  acts  of 
1887,  1889,  1891  and  1893.  This  act  of  March  18,  1885,  as 
thus  amended,  is  in  force  in  all  the  cities,  towns,  cities  and 
counties,  and  municipalites  of  the  state;  and  the  work  and 
improvement  therein  provided  for  must,  in  every  munici- 
pality of  the  state,  be  done  and  performed  by  and  under 
the  authority  of  said  act,  and  pursuant  to  its  terms  and 
provisions.  It  contains  within  itself  a  complete  system  for 
street  improvements,  and  sewer  construction,  upon  streets 
already  opened  or  dedicated,  or  which  may  be  hereafter 
opened  or  dedicated. 

THE    VROOMAN    ACT    OF    MARCH    18,    1885. 

The  Vrooman  act  of  March  18,  1885,  as  amended 
by  subsequent  amendatory  and  supplementary  acts,  is 
the  act  now  in  force  by  which  streets  which  have  been 
opened  or  dedicated  to  public  use,  may  be  graded  or 
rograded,  planked  or  replanked,  paved  or  repaved,  sewered 
or  sidewalked  by  the  city  council,  or  otherwise  improved  as 
provided  by  the  act.  Section  2  of  the  act  declares  what 
improvements  may  be  made  under  the  act  upon  such  streets. 
Those  improvements  may  be  done  by  private  contract  in 
the  municipalities  of  this  state,  by  any  private  person  or 
contractor  on  behalf  of  and  contracting  directly  with  the 
owners  of  the  property  fronting  upon  the  street,  as  well  as 
by  the  municipal  authorities  themselves. 

But,  when  a  private  contract  is  thus  entered  into  between 
the  property  owners  and  a  contractor  to  improve  a  street 
by  grading,  etc.,  the  property  owners,  before  the  work  is 
done,  must  first  obtain  permission  so  to  do  from  the  coun- 
cil as  provided  for  by  subdivision  10  of  section  7  of  the  act. 
[See  post,  page  65.]  Such  private  contracts  have  no  con- 
nection with  the  provisions  of  these  stfeet  improvement 


THE    VROOMAN    ACT    OF    18S5  XLIII 

acts.  The  object  of  this  street  improvement  act,  and  of  all 
other  street  work  acts,  is  to  empower  the  municipal  author- 
ities to  do  the  work  therein  provided  for,  and  assess  the 
cost  thereof  upon  the  property  made  liable  therefor,  e.  g., 
the  property  which  fronts  upon  the  street  improved,  or  the 
property  which  is  declared  to  be  benefited  by  the  improve- 
ment. 

Where  the  improvement  is  done  by  the  municipal  author- 
ities under  and  pursuant  to  the  provisions  of  the  said  general 
street  improvement  act,  the  property  owners,  in  that  case, 
are  not  parties  to  the  contract  whatever.  Their  property 
is  assessed  under  the  taxing  power  to  pay  for  the  improve- 
ment, but  the  only  parties  to  the  contract  are  the  muni- 
cipality and  the  contractor.  The  city  government  and  the 
contractor  are  the  only  parties  to  the  proceeding,  so  far  as 
making  the  improvement  is  concerned;  that  being  done, 
the  city  government  acts  alone  in  its  political  capacity  in 
apportioning  and  levying  the  tax  upon  the  property  of  the 
property  owner  or  taxpayer;  but  when  the  time  arrives 
for  the  collection  of  the  tax,  the  city  government  steps  out 
of  the  triangular  relation  existing  between  the  contractor, 
the  city  government  and  the  property  owner  or  taxpayer, 
and  the  contractor  steps  in  the  place  of  the  city  govern- 
ment and  is  made  her  agent  for  the  purpose  of  collecting 
the  tax,  /.  e.  where  the  assessment  is  collected  by  suit,  and 
not  by  summary  sale  of  the  property  as  for  taxes  due  and 
unpaid,  as  provided  by  some  of  the  acts.  "Independent  of 
the  statute,  the  tax  would  be  due  from  the  taxpayer  to  the 
city,  and  the  city  would  have  to  demand  and  sue  for  it,  if 
necessary;  but  the  statute  provides  that  the  city  shall  not 
be  responsible  for  the  collection  of  the  tax,  or  subject  to 
the  risk,  trouble  and  annoyance,  but  shall  virtually  assign 
her  right  of  action  for  the  tax  to  the  contractor,  in  full 
payment  for  his  work  and  labor  under  her  contract  with 
him,  and  authorize  him  to  sue  in  his  own  name  to  recover 
it,  if  necessary.  This  being  done,  his  relation  of  contractor 
is  at  an  end.  *  *  *  The  thing  sued  for  is  not  the  con- 
tract price,  or  a  part  of  it,  but  the  tax  specified  in  the 
assessment  or  warrant,  for  which  he  sues,  not  as  a  con- 
tractor but  as  assignee  of  the  city."  [Hendrick  v.  Growl ey 
31  Cal.  472.] 

When,  however,  the  property  owners  do  the  work  them- 
selves, arid  enter  into  &  private  contract  therefor,  such  con- 
tract is  controlled  by  the  general  law  of  contracts,  and  not 
by  the  provisions  of  these  street  work  acts.  And  where  such 
private  contract  is  entered  into  by  the  property  owners, 
the  contractor,  or  person  who  does  the  work,  may  have 


XLTV  STREET  WORK  LAW INTRODUCTION 

a  lieu  under  the  Code  of  Civil  Procedure  to  secure  pay- 
ment for  his  work  and  labor  done  or  material  furnished. 
[§§  1183-1203  C.  C.  P.— particularly  §  1191.] 

Where  the  improvement  is  made  under  any  such  private 
contract,  the  property  owner  is  a  party  to  the  contract.  It 
is  his  Avill  that  the  contract  should  be  made,  and  the 
improvement  contracted  for  be  done,  and  questions  arising 
out  of  any  such  contract,  between  the  parties  thereto,  are 
to  be  determined  by  the  general  law  of  contracts,  and  in 
some  respects  at  least,  by  the  law  relating  to  the  "Liens  of 
mechanics  and  others" — C.  C.  P.  chapter  II,  title  IV,  part 
III.  The  municipal  authorities  of  the  municipalities  of  this 
state  are  authorized  to  make  certain  contracts  for  the  per- 
formance of  certain  improvements  upon  the  streets  of  the 
municipality,  under  and  by  virtue  of  certain  general  laws  of 
the  state,  and  as  it  is  the  general  street  work  laws  of  this 
state,  now  in  force,  that  constitute  the  subject  matter  of 
this  book,  such  private  contracts  as  are  above,  referred  to 
need  no  further  consideration.  The  general  street  improve- 
ment act  now  in  force  all  over  the  state,  under  which  most 
of  the  improvements  upon  public  urban  highways  are 
made,  is  the  said  act  of  March  18,  1885,  commonly  known 
as  the  Vrooman  act  of  1885. 

Where  an  improvement  is  made  by  the  municipal  authori- 
ties, under  a  contract  executed  pursuant  to  the  provisions 
of  this  general  street  improvement  act,  the  Vrooman  act  of 
March  18,  1885,  the  property  owners  are  not  parties  to  the 
contract;  the  proceedings  as  to  them  are  in  invitum',  their 
liability  is,  in  a  sense,  that  of  taxpayers,  [see  post. 
pp.  70-72,  for  a  definition  of  the  terms  "assessment"  and 
"taxation"],  and  the  proceedings  to  be  valid,  so  as  to  entitle 
the  contractor  to  recover  the  amount  of  the  tax  or  assess- 
ment assessed  against  the  property  of  the  lot  owner  or  tax- 
payer, must  be  strictly  in  accord  with  the  requirements  of 
the  statute;  the  mode  in  such  cases  constitutes  the  measure 
of  the  power  of  the  municipal  authorities.  To  entitle  the 
contractor  to  recover  against  the  property  assessed,  there 
must  be  a  valid  contract  under  which  the  work  must  be 
performed;  this  must  be  followed  by  a  valid  assessment; 
and,  to  vest  a  right  of  action  in  the  contractor,  certain  other 
acts  must  be  performed  after  the  issuance  of  the  assess- 
ment. 

Outline  of  the  Provisions  of  the  Vrooman  Act  of  March  18, 
1885,  as  amended.  The  statute  provides  that  the  contract  shall 
be  executed  by  the  superintendent  of  streets.  To  empower 
him  to  execute  a  valid  contract,  so  as  to  bind  the  property 
of  the  lot  owner  or  taxpayer,  there  are  at  least  ten  essential 


THE  VROOMAN  ACT  OF  1885  XLV 

prerequisites,  viz:  (1.)  Passage  of  a  resolution  of  intention; 
(2.)  posting  and  publication  of  the  resolution;  (3.)  posting 
and  publication  of  notices  of  passage  of  the  resolution;  (4  ) 
passage  of  an  order  for  the  work  to  be  done,  or  resolution 
of  construction;  (5.)  publication  of  the  order  for  the  work 
to  be  done.  [These  five  prerequisites  are  provided  for  by 
section  3  of  the  act.]  (6.)  posting  and  publication  of 
notices  inviting  sealed  proposals;  (7.)  opening  and  con- 
sidering the  bids  by  council;  (8.)  award  of  the  contract 
to  the  lowest  bidder;  (9.)  posting  and  publishing  notice 
of  award  of  contract;  and  (10.)  execution  of  the  written 
contract  by  the  superintendent  of  streets.  [These  last  five 
prerequisties  are  provided  for  by  section  5  of  the  act.] 
There  are  seven  more  prerequisites  to  a  valid  right  of  action 
in  the  contractor  to  sue  and  recover  from  the  lot  owner  the 
amount  of  his  assessment,  viz:  (1.)  Making  an  assess- 
ment roll  as  provided  for  by  section  8  of  the  act;  (2.) 
attaching  to  the  assessment  a  diagram  as  provided  for  by 
said  section  8;  (3.)  making,  signing  and  countersigning 
a  warrant  for  the  collection  of  the  assessment  and  attach- 
ing the  same  to  the  assessment  roll  as  provided  by  section 
9  of  the  act;  (4-)  recording  said  warrant,  assessment  and 
diagram,  together  with  the  certificate  of  the  city  engineer, 
as  provided  by  said  section  9;  (5.)  demand  upon  the  lot 
owner  assessed  or  his  agent,  or  upon  the  premises,  as  pro- 
vided by  section  10  of  the  act;  (6.)  return  of  the  warrant, 
with  a  return  endorsed  thereon,  signed  and  verified,  as  pro- 
vided by  said  section  10;  and  (7.)  recording  the  said 
return  endorsed  on  the  warrant,  and  also  recording  the 
original  contract,  if  not  already  recorded,  as  provided  by 
said  section  10.  The  foregoing  seventeen  essential  require- 
ments of  the  act  are  jurisdictional,  and  constitute  the 
important  and  indispensable  requirements  to  the  existence 
of  a  valid  right  in  the  contractor  to  enforce  payment  by 
the  taxpayer  whose  property  has  been  assessed. 

Section  1  of  the  act  declares  what  streets  and  highways 
are  within  the  purview  of  the  act,  viz:  All  streets,  lanes, 
alleys,  places  or  courts  in  the  municipality  opened  or  dedi- 
cated to  public  use.  Section  2  of  the  act  declares  when  and 
what  kinds  of  work  the  city  council  may  order  to  be  done 
upon  said  streets  and  highways.  Sections  3,  4,  5  and  6, 
prescribe  the  jurisdictional  prerequisites  to  a  valid  contract. 
Section  7  declares  the  rules  of  assessment  under  and 
according  to  which  the  lots  and  lands  of  the  property  owners 
are  to  be  assessed.  Section  8  provides  when  and  how  the 
assessment  roll  shall  be  made,  and  its  form.  Section  9 
prescribes  two  essentials  to  the  existence  of  a  valid  assess- 


XI/VT  STREET  WORK  LAW INTRODUCTION 

ment  lien,  viz:  (1. )  Issuance  of  the  warrant;  and  (2.) 
recordation  of  the  warrant,  assessment,  diagram  and  certi- 
ficate of  the  city  engineer.  Section  10  provides  three  more 
acts  necessary  to  the  existence  of  a  valid  right  of  action  in 
the  contractor,  viz:  (1.)  Demand  upon  the  persons 
assessed,  or  their  agents,  or  upon  the  premises;  (2.) 
return  of  the  warrant,  with  a  return  endorsed  thereon f 
signed  and  verified;  and  (3.)  recordation  of  the  return 
endorsed  upon  the  warrant,  and  also  the  original  contract 
if  not  already  recorded.  In  addition  to  the  foregoing 
prerequisites  a  petition  for  grading  must  be  presented  to 
the  council,  as  provided  for  by  section  2,  whenever  grading 
is  to  be  done  upon  a  street  the  official  grade  of  which  shall 
have  been  changed  since  the  amendment  of  section  2  by 
the  act  of  March  11,  1893.  [See  sections  38-52  for  the  pro- 
cedure for  changing  or  modifying  the  grade  lines  of  any 
street  the  official  grade  of  which  has  once  been  established.] 

Section  11  provides  a  remedy  to  an  "aggrieved"  property 
owner,  dissatisfied  with  any  act  of  the  superintendent  of 
streets,  by  an  appeal  to  the  council.  Section  12  prescribes 
the  rules  of  procedure  in  an  action  to  enforce  the  lien  of 
the  assessment.  Sections  13,  14  and  15  relate  to  "repairs" 
and  "reconstructions"  upon  streets  that  are  out  of  repair  or 
need  reconstruction,  and  are  in  a  condition  to  endanger 
persons  or  property  passing  thereon,  or  in  condition  to 
interfere  with  the  public  convenience  in  the  use  thereof. 
Sections  16  to  26,  inclusive,  contain  miscellaneous  provis- 
ions of  various  kinds.  Fart  II  of  the  act,  embracing  sec- 
tions 27  to  33,  inclusive,  relates  to  sewer  construction,  and 
contains  certain  provisions  for  paying  the  costs  of  con- 
structing sewers.  Part  III,  embracing  sections  34  to  37r 
inclusive,  contains  definitions  and  other  miscellaneous 
provisions.  Sections  38  to  53,  added  to  the  original  act  of 
March  18,  1885,  by  an  act  approved  March  31,  1891,  [stat- 
utes 1891,  p.  461]  and  amended  by  the  act  of  March  9,  1893, 
[statutes  1893,  p.  89,]  prescribe  the  procedure  for  changing 
or  modifying  the  grade  of  any  street  after  the  official  grade 
has  once  been  established,  and  for  paying  the  damages 
resulting  from  such  change  of  grade  to  any  property  owner 
whose  property  is  damaged  by  reason  thereof. 


The  foregoing  constitutes  a  brief  outline  of  the  provisions 
of  the  general  street  improvement  ^ct  of  March  18,  1885, — - 
the  Vrooman  act — the  principle  act  relating  to  impro\7e- 
ments  upon  open,  public  or  dedicated  streets. 


BOND  ACT TREE  PLANTING  ACT  XLVII 

THE  STREET  IMPROVEMENT  BOND  ACT  OF  FEBRUARY  27,  1893. 

The  bond  act  of  February  27,  1893,  [statutes  1893,  p.  33] 
may  be  classified  as  a  "street  improvement  act."  Although, 
it  does  not,  in  terms,  purport  to  be  amendatory  of,  or  sup- 
plementary to,  the  general  street  improvement  act, — the 
Vrooman  act  of  March  18,  1885, — yet,  in  effect,  it  is  supple- 
mentary to  said  general  street  improvement  act.  As  stated 
in  its  title,  its  object  is  "to  provide  a  system  of  street 
improvement  bonds;"  and  it  authorizes  the  city  council, 
whenever  it  shall  find,  upon  estimates  of  the  city  engineer, 
that  the  cost  of  any  proposed  work  or  improvement,  author- 
ized by  said  Vrooman  act  of  March  18,  1885,  will  be  greater 
than  one  dollar  per  front  foot  along  each  line  of  the  street 
so  proposed  to  be  improved,  to  determine,  in  its  discretion, 
that  serial  bonds  shall  be  issued  to  represent  the  cost  of 
said  work  or  improvement. 

P>y  an  act  approved  March  17,  1891,  [statutes  1891,  p. 
11(>]  the  legislature  passed  an  act  amending  the  Vrooman 
act  of  March  18,  1885,  by  adding  thereto  an  additional  part 
numbered  part  IV,  consisting  of  seven  new  sections  num- 
bered 38  to  44,  inclusive.  This  act  of  March  17,  1891,  was 
very  similar  in  its  provisions  to  the  bond  act  of  February 
27,  1893,  except  that,  while  the  former  added  its  provisions 
to  the  Vrooman  act  of  1885.  the  latter  act, — the  bond  act  of 
February  27,  1893 — in  a  measure,  stands  by  itself,  and 
only  by  reference  incorporates  within  itself  any  of  the 
provisions  of  the  general  street  improvement  act, — the 
Vrooman  act  of  March  18,  1885.  Section  8  of  the  bond  act 
of  February  27,  1893,  expressly  repeals  the  said  act  of 
March  17,  1891,  except  as  to  proceedings  theretofore  com- 
menced thereunder,  and  the  bond  act  of  February  27,  1893, 
is  the  act  now  in  force, — if  constitutional — authorizing  the 
issuance  of  serial  bonds  representing  the  cost  of  any  work 
or  improvement  done  or  performed  under  the  general  street 
improvement  act-, — the  Vrooman  act  of  March  18,  1885. 

THE    TREE  PLANTING   OR  SHADE  TREE  ACT  OF  MARCH  11,   1893. 

The  tree  planting,  or  shade  tree  act  of  March  11,  1893, 
[statutes  1893,  p.  153]  entitled  "An  act  to  provide  for  the 
planting,  maintenance,  and  care  of  shade  trees  upon 
streets,  lanes,  alleys,  courts,  and  places  within  municipali- 
ties, and  of  hedges  upon  the  lines  thereof;  also,  for  the 
eradication  of  certain  weeds  within  the  city  limits,"  may 
also  be  included  in  the  classification  of  street  improvement 
acts.  This  shade  tree  act  is  the  first  general  law  of  the 
kind  ever  passed  in  this  state. 


XLVIII  STREET   WORK    LAW INTRODUCTION 

THE  SANITARY  DISTRICT    ACT    OF    MARCH    31,  1891. 

The  sanitary  district  act  of  March  31, 1891  [statutes  1891, 
p.  223],  authorizes  the  formation  of  a  sanitary  district 
within  any  count)7  of  th-e  state,  after  an  election  therefor, 
ordered  by  the  board  of  supervisors  of  the  county,  upon 
the  presentation  of  a  petition  therefor  to  the  board,  signed 
by  twenty-five  persons  in  the  county.  Such  sanitary  dis- 
trict, it  seems,  may  be  wholly  without  or  wholly  within 
any  incorporated  city  or  town  in  the  county,  or  may  be 
partly  within  and  partly  without  such  incorporated  city  or 
town.  The  sanitary  district  thus  created  is  a  auasi  munici- 
pal corporation,  and  has  power  to  construct  and  maintain 
and  keep  clean  such  sewers  and  drains  as  in  the  judgment 
of  the  sanitary  board  shall  be  necessary  or  proper. 

The  Vrooman  act  of  March  18,  1885, — the  general  street 
improvement  act  in  force  in  the  cities,  towns,  and  cities 
and  counties  of  the  state — authorizes  the  city  council  of 
any  city,  town,  or  city  and  county,  to  construct  and 
maintain  and  keep  clean  sewers  and  drains.  This  sanitary 
district  act  provides  for  the  creation  of  a  sanitary  district,  or 
quasi  municipal  corporation,  and  within  the  limits  of  such 
district  a  board  of  directors,  called  the  sanitary  board, 
exercises  powers  similar,  in  many  respects,  to  the  powers 
exercised  by  the  city  council  of  an  incorporated  city  or 
town,  in  the  construction  and  maintenance  of  sewers  or 
drains,  and  in  keeping  the  same  clean.  It  will  be  seen, 
therefore,  that  this  sanitary  district  act  may  be  embraced 
within  the  catagory  of  "street  improvement  acts." 

By  an  act  approved  March  9,  1893  [statutes  1893,  p.  88], 
section  15  of  the  sanitary  district  act  was  amended. 

THE    STREET    OPENING    ACT    OF    MARCH    6,  1889. 

Thus  far  the  history  and  evolution  of  the  street  improve- 
ment acts,  i.  e.y  acts  providing  for  work  and  improvements 
upon  existing  streets,  or  streets  already  •  opened  or  dedi- 
cated, have  been  briefly  traced.  It  remains  now  to 
trace,  in  the  briefest  possible  manner,  the  history 
of  the  street  opening  acts,  i.  e.,  acts  providing 
for  the  opening,  widening,  closing,  etc.,  of  streets. 
These  street  opening  acts  do  not  make  any  provi- 
sion for  nor  authorize  any  improvement  upon  street*;. 
They  merely  authorize  the  creation  or  partial  creation  or 
widening  of  streets  and  the  closing  of  streets.  Heretofore 
it  has  been  the  policy  of  the  legislature  to  provide  for 
improvements  upon  existing  streets  by  acts  entirely  dis- 
tinct from  acts  providing  for  opening,  extending  and 


HISTORY  OF  STREET  OPENING    ACTS.  XLIX 

widening  streets.  [City  and  County  of  San  Francisco  v. 
Kiernan,  33  Pac.  Rep.  723.]  Acts  providing  for  improve- 
ments upon  existing  streets,  and  acts  providing  for  open- 
ing, extending,  widening  or  closing  streets  belong  to  two 
entirely  distinct  classes.  Nevertheless,  the  history  of  the 
street  improvement  acts,  given  supra  [page  xxni  et  seq.] 
and  what  is  said  in  connection  therewith,  will  also  serve  as 
an  illustration  of  the  growth  and  history  of  the  acts  pro- 
viding for  opening,  extending,  widening  and  closing  streets 
prior  to  the  adoption  of  the  new  constitution. 

Jfixtory  of  Street  Opening,  Widening  and  Closing  Acts  prior 
to  the  New  Constitution.  Like  the  acts  passed  under  the  old 
constitution  providing  for  improvements  upon  existing 
streets,  the  acts  passed  during  the  existence  of  said  consti- 
tution, relative  to  the  opening,  closing,  widening  and 
extending  of  streets,  were  in  almost  all,  if  not  in  every  case, 
special  and  local  laws,  found  in  the  charters  of  the  various 
municipalities,  or  in  the  acts  amendatory  thereof,  or  else 
were  acts  providing  especially  for  the  opening,  widening, 
extending  or  closing  of  some  particular  street  designated 
by  name.  The  San  Francisco  consolidation  act,  the  act 
providing  for  the  consolidation  of  the  city  of  San  Francisco 
and  the  county  of  San  Francisco,  into  the  municipal  cor- 
poration known  as  the  city  and  county  of  San  Francisco 
[statutes  1856,  p.  145],  provided  for  the  opening  of  streets, 
and  may  serve  as  an  illustration  of  charter  provisions  rel- 
ative to  the  subject  matter  of  this  class  of  acts.  Thus,  it  is 
provided  in  section  34  of  the  said  consolidation  act,  [stat- 
utes 1856,  p.  156],  "that  the  board  of  supervisors  shall  have 
power  to  lay  out  and  open  new  streets  within  the  former 
corporate  limits  of  the  city  of  San  Francisco,  *  *  *  * 
but  shall  have  no  power'  to  subject  the  city  and  county 
to  any  expense  therefor,  exceeding  the  sum  of  one  thous- 
and dollars." 

The  act  of  April  25,  1863  [statutes  1863,  p.  560],  entitled 
"An  act  to  confer  further  power  upon  the  board  of  super- 
visors of  the  city  and  county  of  San  Francisco," — empow- 
ering the  said  board  of  supervisors  "to  provide,  by  order, 
for  laying  out,  opening,  extending,  widening,  straightening 
or  closing  up,  in  whole  or  in  part,  any  street,  square,  lane 
or  alley,  within  the  bounds  of  said  city" — was,  in  effect,  an 
act  amendatory  of  the  consolidation  act,  and  affords  an 
illustration  of  the  special  and  local  laws  amendatory  of 
existing  city  charters,  passed  prior  to  the  new  constitution, 
relative  to  the  subject  matter  of  acts  providing  for  the 
opening  and  closing  of  streets,  etc.  [See  also  the  act  of 
April  4,  1864,  statutes  1863-64,  p.  347.] 


L  STREET    WORK    LAW INTRODUCTION 

Acts  illustrative  of  those  special  and  local  laws  passed 
under  the  old  constitution,  and  which  provided  especially  for 
the  opening,  widening,  extending  or  closing  of  some  particu- 
lar street  in  a  city,  maybe  found  in  the  following  acts:  (1.) 
An  act  entitled  "An  act  to  open  and  establish  a  public 
street  in  the  city  and  county  of  San  Francisco,  to  be  called 
'Montgomery  avenue,'  and  to  take  private  lands  therefor," 
approved  April  1,  1872.  [Statutes  1871-2,  p.  911.]  This 
"Montgomery  avenue"  act  was  considered  by  the  Supreme 
Court  in  Mulligan  v.  Smith,  59  Cal.  206,  and  Kahn  v. 
Board  of  Supervisors,  79  Cal.  388.  (0.)  An  act  entitled 
"An  act  to  authorise  the  widening  of  Dupont  street,  in  the 
city  of  San  Francisco,"  approved  March  23,  1876.  [Stat- 
utes 1875-76,  p.  433.]  This  "Dupont  street"  act  came 
before  the  Supreme  Court  in  Lent  v.  Tillson,  72  Cal.  404, 
when  its  constitutionality  was  upheld  in  a  very  learned 
opinion  by  Mr.  Justice  Temple. 

History  of  Street  Opening,  Widening  and  Closing  Acts  since 
the  Adoption  of  the  New  Constitution.  Under  the  new  con- 
stitution— the  present  organic  law  of  the  state — the  legisla- 
ture may  not  pass  any  local  or  special  law  "authorizing  the 
laying  out,  opening,  altering,  maintaining,  or  vacating  roads, 
highways,  streets,  alleys,  town  plats,  parks,  cemeteries, 
grave  yards,  or  public  grounds  not  owned  by  the  state,"  nor 
"in  all  other  cases  where  a  general  law  can  be  made  applica- 
ble." [Constitution,  article  IV,  section  25,  subdivisions  7 
and  33.]  Accordingly  general  laws,  operative  in  every 
municipality  of  the  state,  have  been  passed,  empowering  the 
city  council  of  any  municipality,  "  to  order  the  opening, 
extending,  straightening,  or  closing  up  in  whole  or  in  part, 
of  any  street,  square,  lane,  alley,  court,  or  place  within  the 
bounds  of  such  city  and  to  condemn  and  acquire  any  arid 
all  land  and  property  necessary  or  convenient  for  that  pur- 
pose." The  first  act  of  the  kind  passed  since  the  adoption  of 
the  new  constitution  was  the  act  of  March  6, 1889,  [statutes 
1889,  page  70.]  This  act  is  still  in  force  in  every  city,  town, 
or  city  and  county  in  the  state  having  a  population  of  less 
than  forty  thousand  inhabitants.  The  act  itself  does  not 
confine  its  provisions  to  municipalities  of  less  than  forty 
thousand  inhabitants;  on  the  contrary,  it  purports  to  be 
uniform  in  its  operation  in  ever}7  municipal  corporation 
throughout,  the  state.  But,  by  an  act  approved  March  23, 
1893,  [statutes  1893,  page  220]  the  legislature  has  attempted 
to  limit  the  provisions  of  the  said  street  opening  act  of 
March  6,  1889,  to  cities  and  cities  and  counties  having  a 
population  of  less  than  forty  thousand  inhabitants,  and,  if 
the  said  act  of  March  23,  1893,  is  constitutional,  the  provi- 


HISTORY    OF   STREET    OPENING   ACTS  I.I 

sions  of    the  street  opening  act  of    March  6,  1889,  are  thus 
limited  ami  circumscrihed.     [See  post  pp.  272-287.] 

The  street  opening  act  of  March  6,  1889,  came  before  the 
Supreme  Court  in  Davies  v.  City  of  Los  Angeles,  86  Cal.37, 
and  was  held  to  he  constitutional  and  operative  in  all  the 
municipalities  of  the  state,  including  cities  having  "free- 
holders' charters,"  framed  since  the  adoption  of  the  new 
constitution  under  the  provisions  of  section  8  of  article  XI, 
as  well  as  in  municipalities  organized  and  incorporated 
under  the  old  constitution.  Justices  Fox  and  Beatty  dis- 
sented. The  act  subsequently  came  hefore  the  Supreme 
Court  in  Dehail  v.  Morford,  95  Cal.457;  City  and  County  of 
San  Francisco  v.  Kiernan,  33  Pac.  Rep.  721";  and  in  City  of 
Santa  Ana  v.  Harlin,  No.  19,030,  decided  Sept.  13,  1893. 

TIIK    STREET    OPENING    ACT    OF    MARCH    23,    1893. 

The  street  opening,  widening,  extending  and  closing  act 
<»f  March  23, 1893,  is  very  similar,  in  its  essential  provisions, 
to  the  street  opening  act  of  March  6,  1889.  Only  whereas 
the  street  opening  act  of  March  6, 1889,  is,  in  terms,  uniform 
in  its  operation  throughout  all  the  municipalities  of  the  state, 
regardless  of  size  or  population,  the  act  of  March  23,  1893, 
on  the  other  hand,  is,  in  terms,  limited  in  its  operation  to 
cities  and  cities  and  counties  having  a  population  of  forty 
thousand  inhabitants  or  over.  It  is  entitled  "an  act  to 
provide  for  laying  out,  opening,  extending,  widening, 
straightening,  diverging,  curving,  contracting,  or  closing 
up,  in  whole  or  in  part,  any  street,  square,  lane,  alley, 
court  or  place,  within  municipalities,  or  cities,  and  cities 
and  counties,  of  forty  thousand  inhabitants  or  over,  and  to 
condemn  and  acquire  any  and  all  land  and  property  neces- 
sary or  convenient  for  that  purpose."  This  title  expresses 
the  general  subject  of  the  act.  Section  23  of  the  act  pro- 
vides as  follows:  "The  act  approved  March  sixth,  eighteen 
hundred  and  eighty-nine,  entitled  'an  act  for  opening, 
widening,  and  extending  streets/  etc.,  after  the  passage  of 
this  act,  shall  not  apply  to  any  city,  or  city  and  county  hav- 
ing a  population  of  forty  thousand  inhabitants  or  over,  but 
as  to  any  city  or  city  and  county  having  a  population  of 
forty  thousand  inhabitants  or  over  said  act  shall  not  apply; 
but  said  cities  and  cities  and  counties  shall  be  subject  only 
to  the  provisions  of  this  act  in  all  matters  embraced  within 
the  perview  of  this  act." 

It  is  a  serious  question  as  to  whether  this  street  opening- 
act  of  March  23,  1893,  is  constitutional.  If  it  is  not  consti- 
tutional, then  the  street  opening  act  of  March  6, 1889,  is  the 
act  which  is  in  force  and  effect  in  all  the  municipal  corpora- 


LIT  STREET    WORK   LAW INTRODUCTION 

tions  of  the    state,  regardless  of  size  or  population.     [For  a 
consideration  of  its  constitutionality  see  post  pp.  272-286.] 

THE  MUNICIPAL  INDEBTEDNESS  ACT  OF  MARCH   19,    1889. 

The  municipal  indebtedness  act  now  in  force  in  all  the 
municipalities  of  the  state  is  the  act  approved  March  19, 
1889,  [Statutes  1889,  page  399]  as  amended  by  subsequent 
amendatory  acts.  It  is  a  general  act.  Its  subject  and 
purpose  is  sufficiently  shown  by  its  title.  It  is  entitled  "An 
act  authorizing  the  incurring  of  indebtedness  by  cities, 
towns  and  municipal  corporations,  incorporated  under  the 
laws  of  this  state,  for  the  construction  of  water-works,  sew- 
ers, and  all  necessary  public  improvements,  or  for  any  pur- 
pose whatever,  and  to  repeal  the  act  approved  March  9, 
1885,  entitled  an  act  to  authorize  municipal  corporations 
of  the  fifth  class,  containing  more  than  three  thousand  and 
less  than  ten  thousand  inhabitants,  to  obtain  water-works; 
also  to  repeal  an  act  approved  March  15,  1887,  entitled  an 
act  authorizing  the  incurring  of  indebtedness  by  cities, 
towns,  and  municipal  corporations,  incorporated  under  the 
laws  of  this  state." 

This  general  municipal  indebtedness  act  is  common  to 
both  of  the  classes  of  acts  which  constitute  the  street  laws 
of  this  state,  i.  e.,  acts  providing  for  improvements  upon 
existing  streets,  and  acts  providing  for  the  creation  or  par- 
tial creation  or  closing  up  of  streets.  For,  under  this 
municipal  indebtedness  act,  the  city  council  is  authorized 
to  "incur  an  indebtedness  to  pay  the  cost  of  any  municipal 
improvement,  or  for  any  purpose  whatever,  requiring  an 
expenditure  greater  than  the  amount  allowed  for  such 
improvement  by  the  annual  tax  levy."  And,  while  the 
street  opening  and  closing  acts  have  been  distinguished  in 
this  book  from  the  acts  which  have  been  designated  as 
"street  improvement  acts,"  because  the  latter  provide  for 
improvements  to  be  made  in  or  upon  existing  streets,  still 
the  word  "improvement"  in  its  broadest  sense,  includes  the 
opening,  closing,  widening,  extending  and  straighten- 
ing of  streets.  Thus  in  section  23  of  the  street  opening  act 
of  March  6,  1889,  and  in  section  21  of  the  street  opening 
act  of  March  23,  1893,  it  is  provided  that  "the  words  'work' 
and  'improvement,'  as  used  in  this  act,  shall  include  all 
work  mentioned  in  section  one  of  this  act." 

The  history  of  these  municipal  indebtedness  acts  since 
the  new  constitution  went  into  effect,  is  as  follows: 

1.  In  1885,  by  an  act  approved  March  9,  1885,  [statutes 
1885,  page  42]  the  legislature  passed  an  act  entitled  "An 
act  to  authorize  municipal  corporations  of  the  fifth  class, 


THE    MUNICIPAL    INDEBTEDNESS    ACT  LIII 

containing  more  than  three  thousand  and  less  than  ten 
thousand  inhabitants,  to  obtain  water-works."  This  act  of 
March  9,  1885,  was  repealed  by  the  general  municipal 
indebtedness  act  now  in  force — the  act  of  March  19,  1889. 

2.  In    1887,  by  an  act  approved  March  15,  1887  [statutes 
1887,  page  120],  the  legislature  passed   an  act  entitled  "An 
act   authorizing    the    incurring    of    indebtedness  by  cities, 
tovvns    or    municipal    corporations,  incorporated  under  the 
laws  of  this  state."     This   was   the   first  general  municipal 
indebtedness  act,  operative  in   all  the  municipalities  of   the 
state,  passed  since  the  adoption  of  the  new  constitution.     It 
was  repealed  by  the    general  municipal  indebtedness  act  of 
March  19,  1889. 

3.  In  1889,  by  an  act  approved  February  16,   18S9,[stat- 
utes  1S89,    page  14]   the  legislature  passed  an  act  amending 
section  four  of  said  act  of  March  15,  1887. 

4-  In  1SS9,  the  legislature  passed  the  said  general  muni- 
cipal indebtedness  act  of  March  19,  1889, — the  general 
municipal  indebtedness  act  now  in  force.  [Statutes  18S9,  p. 
o(,M).]  By  this  act  each  of  said  prior'acts  relative  to  munici- 
pal indebtedness;  viz.,  the  act  approved  March  9,  1885,  and 
the  act  approved  March  15,  1887,  were  expressly  repealed, 
and  likewise  "till  general  acts,  or  special  acts,  or  parts  of 
acts,"  conflicting  with  said  act  of  March  19,  1889. 

5.  In  1891,  by  an  act  approved  March  11,  1891,  [statutes 
1891,  p.  94]  the  legislature  passed  an  act  amending  section 
2  of  the  general  municipal    indebtedness  act  of    March    19, 
1889. 

6.  In  1891,  by  an  act  approved  March  11,  1891,  [statutes 
1891,  p.  84]  the  legislature  passed  an  act  amending  section 

5  of  the  general   municipal  indebtedness   act  of    March  19, 
1889. 

7.  In  1891,  by  an  act  approved  March  19, 1891,  [statutes 
1891,  p.  132,]  the   legislature  passed  an  act   amending  sec- 
tions 9  and  10  of    the  general    municipal    indebtedness  act 
<»f  March  19,  1889. 

8.  In  1893,  by  an  act  approved  March  1,  1893,  [statutes 
1893,  p.  61]  the  legislature  passed  an  act  amending  sections 

6  and  8    of   said   general    municipal    indebtedness  act   of 
March  1(.),  1889.     By  these  amendments  to  sections  6  and  8, 
it  was  provided  that  the  bonds  issued  under  the  act  should 
run  for  forty  years  instead  of    twenty,  and  that  one-fortieth 
part,  instead  of  one-twentieth   part,  of  the  whole  amount  of 
indebtedness  shall    be  paid  each    and    every    year.     These 
amendments  to  sections   6  and  8,    were  made    pursuant    to 
the  amendment  to    the  constitution  adopted  at  the  general 

election  held  in   1892,   by   which  section    18   of  article    XI 

E   Li&ft^L 

CFTHE  r     ^^ 


STREET    WORK    LAW INTRODUCTION 

was    amended  so  as  to  permit    the  issuance  of    forty   year 
bonds. 


The  foregoing  pages  attempt  to  give,  in  as  brief  a  manner 
as  possible,  a  succinct  statement  of  the  history  and  growth 
of  the  street  laws  of  this  state,  and  a  brief  statement  of  the 
acts  now  in  force  relative  to  improvements  in  and  upon 
existing  streets,  as  well  as  those  relating  to  street 
opening,  extending,  widening  and  closing.  In 
the  following  pages  these  several  acts,  now  in  force, 
as  amended  up  to  date,  are  set  forth  in  full,  and 
with  such  notes  thereto — consisting,  for  the  most  part, 
of  decisions  by  our  Supreme  Court  construing  the  pro- 
visions of  these  and  similar  acts — as  will  serve  to  illustrate 
the  meaning  of  their  provisions  and  such  points  as  have 
arisen  in  their  operation  from  time  to  time  since  their 
enactment  or  such  as  may  hereafter  arise. 

In  the  appendix,  the  Vrooman  act  of  March  18, 
1885,  the  street  bond  act  of  February  27,  1893,  and 
the  street  opening  act  of  March  6,  1889,  are  :«gain 
set  forth  in  full,  and  as  amended  up  to  date.  It  wj:s 
thought  best  to  duplicate  these  last  mentioned  acts, 
as,  by  setting  them  forth  separately,  unincum- 
bered  with  the  annotations,  the  busy  practitioner  will 
be  the  more  easily  enabled  to  find  any  particular  provision 
which  he  may  be  looking  for,  and  in  this  way  an  examina- 
tion of  the  provisions  of  these  acts  will  be  facilitated  with- 
out having  to  run  over  a  great  number  of  pages  devoted  to 
the  annotations. 

In  the  appendix  will  also  be  found  some  of  the  forms 
most  commonly  in  use  in  proceedings  under  these  acts. 


€-e$E 
OF  THE 
IVERSITT 


Street  M/ork  tfcf  of  March  18th,  1885 

AS  AMENDED  BY 

SUBSEQUENT  AMENDATORY  AND  SUPPLEMENTARY    ACTS   UP 
TO  AND  INCLUDING  ACTS  OF  1893. 


An  Act  to  provide  for  work  upon  streets,  lanes,  alleys,  courts, 
places  and  sidewalks,  and  for  the  construction  of  sewers 
within  municipalities. 

[Approved  March  18, 1885.] 

PART    I. 

SECTION  1.  All  streets,  lanes,  alleys,  places,  or  courts,  in  the  muni- 
cipalities of  this  state  now  open  or  dedicated,  or  which  may  hereafter 
be  opened  or  dedicated  to  public  use,  shall  be  deemed  and  held  to  be  open 
public  streets,  lanes,  alleys,  places,  or  courts,  for  the  purposes  of  this  act, 
and  the  city  council  of  each  municipality  is  hereby  empowered  to  establish 
and  change  the  grades  of  said  streets,  lanes,  alleys,  places,  or  courts,  and 
fix  the  width  thereof,  and  is  hereby  invested  with  jurisdiction  to  order  to 
be  done  thereon  any  of  the  work  mentioned  in  section  two  of  this  act, 
under  the  proceedings  hereinafter  described.  {Statutes  1885,  page  147.] 

[Section  1  of  the  act  of  March  18,  1885,  has  never  been  altered  or 
amended.] 

1.  Scope  of  Section  1.  The  municipal  government  of  a 
city,  in  causing  street  improvements  to  be  made,  acts  under 
the  authority  conferred  upon  it  by  the  legislature,  and  is 
subject  to  all  the  constitutional  limitations  and  retraints 
imposed  on  the  legislature,  and  has  no  other  or  greater 
power  than  is,  and  lawfully  may  be,  conferred  on  it  by  the 
legislative  act.  [Creighton  v.  Manson,  27  Gal.  613.] 

Section  one  of  the  act  declares  what  streets  and  urban 
highways  are  within  the  purview  of  the  act,  and  empowers 
the  city  council  of  each  municipality  to  establish  and 
change  the  grade  of  such  streets  and  urban  highways,  and 
fix  the  width  thereof,  and  invests  such  city  council  with 
jurisdiction  to  order  to  be  done  on  such  streets,  lanes,  etc., 
any  of  the  work  mentioned  in  section  two  of  the  act,  under 
the  proceedings  in  the  act  thereafter  described  and  pro- 
vided for. 

Section  two  of  the  act  declares  when  and  what  kinds  of 
work  the  city  councils  may  order  to  be  done  upon  said 
streets  and  other  urban  highways. 


2  STREET  WORK  LAW — STREET   IMPROVEMENT   ACT 

Subsequent  sections  of  the  act  describe  the  proceedings 
necessary  to  cloth  the  council  with  jurisdiction  to  order 
such  street  work  to  be  done,  the  mode  and  manner  of 
letting  the  contracts,  principles  of  assessment  to  pay  the 
expenses,  mode  of  making  the  assessment,  proceedings 
necessary  to  acquire  a  lien  for  the  amounts  assessed,  pro- 
ceedings necessary  to  enforce  the  lien,  etc. 

The  urban  highways  subject  to  the  jurisdiction  of  the 
act  are,  "all  streets,  lanes,  alleys,  places,  or  courts,  in  the 
municipalities  of  this  state,  now  open  or  dedicated,  or 
which  may  hereafter  be  opened  or  dedicated  to  public  use." 

Streets,  lanes,  alleys,  etc.,  open  or  dedicated  to  public  use 
are  public  highways.  The  term  "highway"  is  generic.  It  is 
the  name  for  all  kinds  of  public  ways,  including  county 
and  township  roads,  streets  and  alleys,  turnpikes  and  plank 
roads,  railroads  and  tramways,  bridges  and  ferries,  canals 
and  navigable  rivers.  In  short,  every  public  thoroughfare 
is  a  highway,  but  every  highway  need  not  be  a  thorough- 
fare, as  it  is  now  well  settled  that  a  cut  de  sac  may  be  a 
highway.  [Elliott  on  Roads  and  Stieets,  page  1.] 

The  term  "highways"  includes  "'rural  highways,"  usually 
denominated  "roads,"  and  "urban  highways,"  or  the  public 
ways  of  a  town  or  city,  usually  called  "streets."  But  the 
term  "highways"  is  a  very  comprehensive  one,  embracing 
in  its  wide  sweep  more  ways  than  urban  streets  or  sub- 
urban roads. 

2.  Meaning  of  the  Word  "Street."  A  street  is  a  road  or 
public  way  in  a  city,  town  or  village.  [Elliott  on  Roads  and 
Streets,  page  12.]  In  its  ordinary  acceptation  the  term 
"street"  is  a  generic  term  and  includes  all  urban  ways 
which  can,  and  are,  generally  used  for  the  ordinary  pur- 
poses of  travel.  A  narrow  way,  less  in  size  than  a  street,  is 
generally  called  an  alley.  [Id.]  "  'Street'  means  more  than 
the  surface;  it  means  the  whole  surface  and  so  much  of 
the  depth  as  is  or  can  be  used,  not  unfairly,  for  the  ordi- 
nary purpose  of  a  street.  It  comprises  a  depth  which 
authorizes  the  urban  authority  to  do  that  which  is  done  in 
every  street,  namely,  to  raise  the  street,  and  lay  down  sewers 
— for,  at  the  present  day,  there  can  be  no  street  in  a  town 
without  sewers — and  also  for  the  purpose  of  laying  down 
gas  and  water  pipes.  'Street/  therefore,  includes  the  sur- 
face and  so  much  of  the  depth  as  may  not  unfairly  be  used 
as  streets  are  used."  [Coverdale  v.  Charlton,  4  L.  R.  Q. 
B.  Div.  104.] 

In  its  ordinary  legal  signification  the  term  "street" 
includes  all  parts  of  the  urban  highway,  namely,  the  road- 
way, the  gutters,  the  curbs  and  the  sidewalks.  [Elliott  on 


MEANING  OF  WORD  . 

Roads  and  Streets,  page  17;  Emmet  v.  San  Francisco,  65  Cal. 
230;  Marini  v.  Graham,  67  Cal.  130.]  But,  while  the  term  is 
ordinarily  used  as  designating  the  whole  of  the  urban  way  it 
does  not  invariably  receive  this  meaning.  Whether  the 
term  "street,"  as  used  in  a  statute,  means  simply  the  road- 
way between  the  curbs  or  sidewalks,  or  whether  it  includes 
the  curbs  and  sidewalks,  as  well  as  the  roadway,  depends 
upon  the  context,  and  it  may  be  used  in  either  or  both 
senses  in  the  same  statute.  Thus,  there  is  no  doubt  that  in 
section  1,  of  the  act  of  March  18,  1885,  the  word  "street"  is 
used  in  its  broader  sense,  and  includes  sidewalks  as  well  as 
the  roadway,  while  in  the  very  next  section,  section  2,  it 
is  used  in  its  limited  sense,  i.  e.,  it  means  simply  the  road- 
way and  does  not  include  the  curbs  or  sidewalks.  For,  as 
section  1  of  the  act  declares  that  the  counsel  is  invested 
with  jurisdiction,  under  the  proceedings  thereinafter 
described,  to  order  to  be  done  upon  all  streets,  lanes,  alleys, 
places  or  courts,  now  open  or  dedicated,  or  which  may 
hereafter  be  opened  or  dedicated  to  public  use,  any  of  the 
street  work  mentioned  in  section  2  of  the  act,  and  as  section 
2  enumerates  the  construction  of  sidewalks  and  curbs  as 
part  of  the  work  authorized  by  the  act  to  be  done,  and  as  sec- 
tion 1  says  nothing  about  sidewalks,  it  follows  that,  since  the 
construction  of  sidewalks  and  curbs  upon  open  or  dedicated 
streets  is  part  of  the  work  authorized  by  section  2  to  be 
done,  that  the  word  "street,"  as  used  in  section  1  of  the  act, 
includes  all  parts  of  the  highway,  the  roadway,  gutters, 
curbs,  and  the  sidewalks.  But,  as  used  in  section  2  of  the 
act  the  word  "street"  is  limited  to  the  roadway,  i.  e.,  the  part 
intended  especially  for  the  use  of  horsemen  and  vehicles, 
lying  between  the  sidewalks.  Section  2  authorizes  the  council 
to  order  the  whole  or  any  portion,  either  in  length  or  width 
of  the  streets,  etc.,  to  be  graded,  paved,  macadamized,  etc. 
and  likewise  especially  authorizes  the  council  to  order 
sidewalks,  curbing,  etc.,  to  be  constructed  therein.  This 
section  mentions  the  work  authorized  to  be  done  upon 
streets,  lanes,  alleys,  etc..  i.  e.,  grading,  paving,  planking, 
macadamizing,  etc.,  and  likewise  mentions,  as  separate, 
and  distinct  work,  the  construction  of  sidewalks  and 
curbs.  The  work  authorized  to  be  done  upon  streets, 
lanes,  etc.,  and  the  construction  of  sidewalks  and  curbs 
are  mentioned  as  different  and  distinct  kinds  of  street 
work,  which  circumstance  shows  that  in  the  sense  in 
which  the  terms  "street"  and  "sidewalk"  are  used  in 
section  2,  the  former  does  not  include  the  latter.  [See 
Baudry  v.  Valdez,  32  Cal.  269;  Himmelmann  v.  Satterlee, 
50  Cal.  69.]  In  the  latter  case  the  resolution  of  intention 


4       STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

and  the  resolution  directing  the  improvement  to  be 
made  in  terms  provided  for  ''macadamizing  the  street." 
The  contract  for  the  improvement,  and  the  assessment, 
both  called  for  macadamizing  the  street  and  the  sidewalk. 
It  is  a  well  established  principle  th'at  the  contract  must 
be  for  the  work  authorized  by  the  resolution  of  intention 
and  no  more.  If  more  is  called  for  by  the  contract  the 
contract  is  void  as  to  the  excess,  and  if  that  which  is 
authorized  to  be  done  cannot  be  segregated  from  the  unau- 
thorized excess,  and  the  assessment  is  for  the  whole,  the 
assessment  is  void  in  toto  so  that,  if  the  term  "street" 
in  a  resolution  authorizing  a  "street"  to  be  macadamized, 
does  not  include  the  term  "sidewalk,"  so  as  to  authorize 
the  macadamizing  of  the  sidewalk,  it  follows  that  a  resolu- 
tion directing  a  "street"  to  be  macadamized  is  not  authority 
for  macadamizing  a  "sidewalk, "and  a  decision  holding  that 
a  resolution  directing  a  street  to  be  macadamized  is  not 
authority  for  macadamizing  the  sidewalk,  must  necessarily 
include  the  corollary  that  the  term  "street"  does  not 
include  the  sidewalks.  Such  was  the  decision  in  Himmel- 
marin  v.  Satterlee,  supra.  In  Baudry  v.  Valdez,  32  Cal. 
276,  it  was  said:  "The  question  whether  the  term  'macada- 
mizing' also  includes  'curbing'  is  settled  by  the  statute 
under  which  the  parties  having  the  matter  in  charge  were 
working.  The  second  section  prescribes  what  street 
improvements  the  city  council  shall  have  power  to 
cause  to  be  made.  Each  kind  is  separately  named  and 
described.  'Macadamizing'  is  named  as  one,  and  'curb- 
ing' as  another.  Hence,  whether  the  former  might  or* 
might  not,  under  other  circumstances,  include  the  latter,  is 
not  the  question.  Does  it,  within  the  meaning  of  the  stat- 
ute under  which  the  parties  were  working  is  the  question, 
and  it  is  clear  that  it  does  not,  for  they  are  there  mentioned 
as  different  and  distinct  kinds  of  street  work,  which  cir- 
cumstance shows  that  hi  the  sense  in  which  the  former 
term  is  used  in  the  statute,  it  does  not  include  the  latter." 
We  conclude  therefore,  that,  while  the  term  "street,"  in 
ordinary  legal  signification,  includes  all  parts  of  the  way — 
the  roadway,  the  gutters,  cufbing  and  sidewalks — still  in 
statutes  and  municipal  ordinances,  directing  the  grading 
and  paving  and  improvement  of  urban  ways,  the  word 
"street"  is  often,  and,  indeed,  generally  understood  to 
mean  the  roadway  only,  that  is,  the  part  of  the  way 
intended  especially  for  the  use  of  horsemen  and  vehicles, 
lying  between  the  curbs  and  sidewalks.  [See  Elliott  on 
Roads  and  Streets,  page  17.]  In  any  event,  whether  the 
terms  "street,"  as  used  in  a  statute,  is  used  in  its  ordinary 


signification  as  including  tha  sidewalks  as  well  as  the  road- 
way, or  whether  it  is  used  in  its  limited  sense,  meaning 
the  road  way  only,  is  a  question  which  must  be  decided  in 
each  case  in  the  light  of  the  context. 

As  stated  above  the  term  "alley"  is  used  to  designate  a 
narrow  way,  less  in  size  than  a  street,  but  it  is  obvious 
that  whether  the  way  is  or  is  not  to  be  called  an  alley 
depends  upon  the  relation  it  bears  to  other  ways  in  the  same 
city  or  town;  for  in  some  cities  or  towns  the  way  would  be 
deemed  so  narrow  as  to  be  merely  an  alley  and  not  a  street, 
while  in  others  it  would  be  comparatively  of  such  a  consid- 
erable width  as  to  take  rank  as  a  street. 

3.  Dedication.  As  stated  in  section  1,  the  street,  alley, 
lane,  etc.,  must  be  open  or  dedicated,  but  no  formal  accept- 
ance of  the  same  by  the  legislative  body  of  the  city  is 
necessary.  The  mere  dedication  of  land  by  the  owner  to 
public  use,  as  public  streets,  lanes,  alleys  or  other  public 
places,  converts  it  into  a  public  street,  lane,  alley,  or  other 
public  place,  for  the  purposes  of  said  act,  without  any 
formal  acceptance  of  the  same  as  such  by  the  legislative 
body  of  the  city,  who  may  thereafter  improve  them  in  the 
manner  provided  by  law.  [Stone  v.  Brooks,  35  Gal.  490.] 
Held,  therefore,  that  where  the  owner  of  a  lot  fronting  on 
Perry  street,  a  cul  de  sac,  sells  the  same,  and  at  the  sale 
represents  the  lot  as  fronting  on  an  extension  of  the  cul  de 
sac  so  extended  as  to  terminate  at  and  open  upon  a  public 
street  running  at  right  angles  that  this  is  a  dedication  to 
public  use  as  a  street  of  that  portion  of  the  lot  represented 
on  the  map  as  an  extension  of  Perry  street,  and  as  such 
was  thereafter  subject  to  the  jurisdiction  of  the  board  for 
all  purposes  of  its  improvement,  which,  when  made, 
operates  as  a  complete  acceptance  of  the  dedication,  and 
perfects  the  right  of  the  public  to  its  use  as  a  public  high- 
way for  all  purposes.  [Id.]  [See  Spaulding  v.  Bradley,  79 
Gal.  450.] 

SECTION  2.  Whenever  the  public  interest  or  convenience  may  require,  the 
city  council  is  hereby  authorized  and  empowered  to  order  the  whole,  or  any 
portion,  either  in  length  or  width,  of  the  streets,  avenues,  lanes,  alleys,  courts, 
or  places  of  any  such  city  graded  or  re-graded  to  the  official  grade,  planked 
or  re-planked,  paved  or  re-paved,  macadamized  or  re- macadamized,  grav- 
eled, or  re-graveled,  piled  or  re-piled,  capped  or  re-capped,  sewered  or 
re-se\vered,  and  to  order  sidewalks,  manholes,  culverts,  cesspools,  gutters, 
tunnels,  curbing,  and  cross-walks  to  be  constructed  therein,  or  to  order  break- 
waters, levees,  or  walls  of  rock,  or  other  material  to  protect  the  same  from 
overflow  or  injury,  and  to  order  any  other  work  to  be  done  which  shall  be 
necessary  to  complete  the  whole  or  any  portion  of  said  streets,  avenues, 
sidewalks,  lanes,  alleys,  courts,  or  places,  and  it  may  order  any  of  the  said 
work  to  be  improved ;  and  also  to  order  a  sewer  or  sewers,  with  outlets,  for 


0      STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

drainage  or  sanitary  purposes,  in,  over  or  through  any  right  of  way  granted 
or  obtained  for  such  purpose;  provided,  that  whenever  the  grade  of  a  street, 
avenue,  lane,  alley,  court,  or  place  shall  hereafter  be  changed,  the  petition 
of  the  owners  of  a  majority  of  the  feet  fronting  thereon,  asking  for  grading 
the  same  to  the  new  grade,  shall  be  a  condition  precedent  to  the  ordering 
of  such  grading  to  be  done.  [Amendment,  approved  March  11,  1893,  Stat- 
utes 1893,  page  172.] 

[Section  2  was  amended  1889,  by  act  of  March  14,  1889,  statutes  1889, 
page  157:  again  in  1891,  by  act  of  March  31,  1891,  statutes  1891,  page  196; 
and  again  in  1893,  by  act  of  March  11,  1893,  statutes!893,  page  172.  j 

1.  Scope  of  Section  2.  Section  two  of  the  act  declares 
what  kinds  of  street  work  may  be  done  upon  the  streets, 
lane?,  alleys,  etc.,  which  section  one  declares  to  be  subject 
to  the  provisions  of  the  act.  Section  one  designates  the 
kinds  of  highways  subject  to  the  provisions  of  the  act,  and 
section  two  designates  the  kinds  of  work  which  may  be 
done  upon  these  highways. 

The  section  allows  work  to  be  ordered  for  less  than  the 
width  of  the  roadway  or  street,  and  for  any  defined  part  of  a 
block  iii  length.  There  is  no  limit  to  the  length  of  the  pro- 
posed work,  except  that  it  must  be  confined  to  streets,  lanes, 
etc., — that  is,  it  must  not  include  any  extension,  like  the  dis- 
charge of  a  sewer,  over  private  property,  unless,  for  sewers, 
the  right  of  way  has  been  obtained.  The  jurisdiction 
of  the  council  is  limited  to  streets,  lanes,  alleys,  etc.,  opened 
or  dedicated. 

Under  the  San  Francisco  Street  Work  Act  of  1863, 
authorizing  the  city  council  to  order  "the  whole  or  any  portion 
of  the  streets"  to  be  improved,  the  council  has  power  to  let 
the  work  of  improving  separate  portions  of  a  street  by  one 
proceeding  and  in  one  contract  therefor.  [Macadamizing 
Co.  v.  Williams,  70  Cal.  534.] 

The  work  authorized  by  section  two  of  the  act  may  be 
separated  into  three  kinds,  viz:  (1)  Work  upon  the  road- 
way only,  viz.,  grading  and  re-grading,  planking  and 
replanking,  paving  and  repaying,  etc.  "Ke-grading"  is 
when  a  street,  degraded  by  use,  is  brought  back  again  to 
the  same  grade.  But  if  the  grade  of  the  street  has  been 
officially  changed  meanwhile  by  ordinance  ''re-grading"  is 
not  the  proper  word.  The  work  will  then  be,  as  in  the 
first  instance,  grading  to  the  official  grade.  In  McVary  v. 
Boyd,  89  Cal.  305,  it  was  held,  that,  whenever  the  condi- 
tion of  a  street  is  such  as,  in  the  estimation  of  the  legisla- 
tive authorities  of  the  city,  it  is  proper  that  the  burden  of 
"re-grading"  should  be  borne  by  the  entire  block,  the 
improvement  may  be  ordered  even  though  a  similar 
expense  had  been  previously  borne  by  the  property  owners 
for  the  original  grading.  (What  is  said  about  re-grading 


GRADING 

applies  also  to  re-planking,  re-paving,  etc.)  (2.)  The 
second  class  of  work  provided  for  by  section  two  is  such  as 
is  not  necessarily  confined  to  the  roadway,  or  street  in  its 
limited  sense,  viz.,  sidewalks,  manholes,  culverts,  cesspools, 
gutters,  tunnels,  curbing,  etc.  (3.)  The  third  class  of 
work  provided  for  by  section  two  is  the  improvement  of 
any  of  the  other  work  mentioned  in  the  section.  The  word 
"improved"  is  here  used  in  its  most  technical  sense,  i.  e., 
the  restoration,  or  enlargement,  or  completion  of  work 
once  done  on  the  same  grade.  In  common  speech,  and 
frequently  throughout  the  act  [See  subd.  2  of  sec.  34] 
the  word  is  applied  also  to  work  in  the  first  instance.  But 
wherever  work  is  to  be  ordered,  after  the  first  instance, 
and  on  the  previous  grade,  and  adds  certain  things  to  com- 
plete the  street,  the  proceedings  should  designate  the  work 
to  be  done  "to  improve  *  *  *  street,  by"  etc. 

2.  Grading.  Section  2  of  the  act  provides  that  "the  city 
council  is  hereby  authorized  and  empowered  to  order 
*  *  *  the  streets  *  *  *  graded  or  re-graded  to  the 
official  grade."  Consequently  the  council  only  has  power 
to  grade  a  street  to  the  official  grade,  and  therefore,  whether 
the  grade  was  officially  established  or  not  before  proceed- 
ings were  begun  to  grade  it,  is  a  material  issue  in  an  action 
upon  a  street  assessment,  and  must  be  proved  by  the  plaint- 
iff if  denied  by  defendant. 

"The  power  to  lay  out,  open  and  grade  streets  carries 
with  it,  by  necessary  implication,  the  power  to  establish  the 
grade  of  such  streets,  unless  the  power  be  expressly  reserved 
or  granted  to  another  body  or  officer."  [Himmelmann  v. 
Hoadley,  44  Cal.  224.]  As  to  what  is  evidence  of  the  estab- 
lishment of  the  official  grade  of  a  street,  see  Gafney  v.  San 
Francisco,  72  Cal.  146;  Dorland  v.  Bergson,  78  Cal.  637; 
City  of  Napa  v.  Easterby,  61  Cal.  510;  Chambers  v.  Satter- 
lee,  40  Cal.  497;  Himmelmann  v.  Hoadley,  44  Cal.  213. 

As  the  city  council  can  only  grade  a  street  to  its  official 
grade,  it  is  not  necessary  that  the  resolution  of  intention  to 
do  the  work  should  state  that  the  street  is  to  be  graded  to 
the  official  grade;  a  statement  that  it  is  to  be  "graded"  is 
sufficient.  For,  in  view  of  the  fact  that  the  street  can  only 
be  graded  to  its  official  grade,  "a  resolution  that  a  street  be 
graded  is  equivalent  to  a  resolution  that  it  be  graded  to  the 
official  grade."  [Emery  v.  S.  F.  Gas.  Co.,  28  Cal.  376-7.] 

Grading  must  necessarily  precede  macadamizing  but 
where  the  statute  does  not  expressly  provide  that 
no  contract  for  macadamizing  shall  be  made  until  the  street 
is  graded,  the  city  authorities  may  authorize  a  contract  for 
macadamizing  after  a  contract  for  grading  has  been 


STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

entered  into,  but  before  the  grading  has  been  done. 
[Dyer  v.  Hudson,  65  Cal.  374.]  The  board  may  order  a 
street  to  be  planked  before  it  is  graded,  and  it  seems  before 
a  contract  for  grading  has  been  entered  into,  provided  the 
grade  and  width  has  been  officially  established.  [Knowles 
v.  Seale,  64  Cal.  377 — under  a  San  Francisco  street  act.] 

Under  section  two  as  amended  in  1893  (Sts.  '93,  p. 
172-3)  where  the  grade  of  a  street,  avenue,  lane,  alley,  etc., 
has  been  changed,  the  street,  avenue,  lane,  etc.,  can  not 
be  graded  to  the  new  grade,  except  upon  petition  of  the 
owners  of  a  majority  of  the  frontage,  asking  for  grading  the 
same  to  the  new  grade.  Without  such  petition  proceedings 
to  grade  such  street,  avenue,  lane,  etc.,  to  the  new  grade, 
would  be  void.  [See  Turrill  v.  Grattan,  52  Cal.  97;  Dyer  v. 
Miller,  58  Cal.  585;  Gately  v.  Leviston,  63  Cal.  365.] 

SECTION  3.  Before  ordering  any  work  done  or  improvement  made,  which 
is  authorized  by  section  two  of  this  act,  the  city  council  shall  pass  a  resolu- 
tion of  intention  so  to  do,  and  describing  the  work,  which  shall  be  posted 
conspicuously  for  two  days  on  or  near  the  chamber  door  of  said  council, 
and  published  by  two  insertions  in  one  or  more  daily,  semi-weekly,  or 
weekly  newpapers  published  and  circulated  in  said  city,  and  designated  by 
said  council  for  that  purpose.  The  street  superintendent  shall  thereupon 
cause  to  be  conspicuously  posted  along  the  line  of  said  contemplated  work 
or  improvement,  at  not  more  than  one  hundred  feet  in  distance  apart, 
but  not  less  than  three  in  all,  or  when  the  work  to  be  done  is  only  upon 
an  entire  crossing  or  any  part  thereof,  in  front  of  each  quarter  block  and 
irregular  block  liable  to  be  assessed,  notices  of  the  passage  of  said  resolu- 
tion. Said  notice  shall  be  headed ''Notice  of  Street  Work,"  in  letters  of 
not  less  than  one  inch  in  length,  and  shall,  in  legible  characters,  state  the 
fact  of  the  passage  of  the  resolution,  its  date,  and  briefly  the  work 
or  improvement  proposed,  and  refer  to  the  resolution  for  further  particu- 
lars. He  shall  also  cause  a  notice,  similar  in  substance,  to  be  published 
for  six  days,  in  one  or  more  daily  newspapers  published  and  circulated  in 
said  city,  and  designated  by  said  city  council,  or  in  cities  where  there  is  no 
daily  newspaper,  by  one  insertion  in  a  semi-weekly  or  weekly  newspaper 
so  published,  circulated,  and  designated.  In  case  there  is  no  such  paper 
published  in  said  city,  said  notice  shall  be  posted  for  six  days  on  or  near 
the  chamber  door  of  said  council  and  in  two  other  conspicuous  places  in 
said  city,  as  hereinafter  provided.  The  owners  of  a  majority  of  the  front- 
age of  the  property  fronting  on  said  proposed  work  or  improvement,  where 
the  same  is  for  one  block,  or  more,  may  make  a  written  objection  to  the 
same  within  ten  days  after  the  expiration  of  the  time  of  the  publica- 
tion and  posting  of  said  notice,  which  objection  shall  be  delivered  to  the 
clerk  of  the  city  council,  who  shall  indorse  thereon  the  date  of  its  reception  by 
him,  and  such  objections  so  delivered  and  indorsed  shall  be  a  bar  for  six 
months  to  any  further  proceedings  in  relation  to  the  doing  of  said  work, 
or  making  said  improvements  unless  the  owners  of  the  one-half  or  more 
of  the  frontage,  as  aforesaid,  shall  meanwhile  petition  for  the  same  to  be 
done.  At  any  time  before  the  issuance  of  the  assessment  roll,  all  owners 
of  lots  or  lands  liable  to  assessment  therein,  who,  after  the  first  publica- 


CTrnTTr^-v   rrTTT?T7V  Sec.  3  as  amended  Q 

SECTION   THKkk  ,  J 


Mar  ;U   1S,,L 

tion  of  said  resolution  of  intention,  may  feel  aggrieved,  or  who  may  have 
objections  to  any  of  the  subsequent  proceedings  of  said  council  in  relation 
to  the  performance  of  the  work  mentioned  in  said  notice  of  intention, 
shall  h'le  with  the  clerk  a  petition  of  remonstrance,  wherein  they  shall 
state  in  what  respect  they  feel  aggrieved,  or  the  proceedings  to  which  they 
object;  such  petition  or  remonstrance  shall  be  passed  upon  by  the  said 
city  council,  and  it3  decision  therein  shall  be  final  and  conclusive.  But 
when  the  work  or  improvement  proposed  to  be  done  is  the  construction  of 
sewers,  man-holes,  culverts,  or  cesspools,  cross-walks  or  sidewalks,  and 
curbs,  and  the  objection  thereto  is  signed  by  the  owners  of  a  majority  of 
tlu-  frontage  liable  to  be  assessed  for  the  expense  of  said  work,  as  afore- 
said, the  said  city  council  shall,  at  its  next  meeting,  fix  a  time  for  hearing 
said  objections,  not  less  than  one  week  thereafter.  The  city  clerk  shall 
thereupon  notify  the  persons  making  such  objections,  by  depositing  a 
notice  thereof  in  thepostofficeof  said  ciiy,  postage  prepaid,  addressed  to  each 
objector,  or  his  agent,  when  he  appears  for  such  objector.  At  the  time 
specified  said  city  council  shall  hear  the  objections  urged,  and  pass  upon 
the  same,  and  its  decisions  shall  l>e  final  and  conclusive,  and  the  said  bar 
for  six  months  to  any  further  proceedings  shall  not  be  applicable  thereto. 
And  when  not  more  than  two  blocks,  including  street  crossings,  remain 
ungraded  to  the  official  grade,  or  otherwise  unimproved,  in  whole  or  in 
part,  and  a  block  or  more  on  each  side  upon  said  street  has  been  so  graded 
or  otherwise  improved,  or  when  not  inoivthan  two  blocks  at  the  end  of 
a  street  remain  so  ungraded  or  otherwise  unimproved,  said  city  council 
may  order  any  of  the  work  mentioned  in  this  act  to  be  done  upon  said 
intervening,  ungraded,  or  unimproved  part  of  said  street,  or  at  the  end  of 
a  street,  ami  said  work  upon  said  intervening  part,  or  at  the  end  of  a 
.  shall  not  be  stayed  or  prevented  by  any  written  or  other  objection, 
unless  such  council  shall  deem  proper.  And  if  one-half  or  more  in  width 
or  in  length,  or  as  to  grading  one-half  or  more  of  the  grading  work  of  any 
street  lying  and  being  between  two  successive  main  street  crossings,  or 
if  a  crossing  has  been  already  partially  graded  or  improved,  as  aforesaid, 
said  council  may  order  the  remainder  improved,  graded,  or  otherwise,  not- 
withstanding such  objections  of  property  owners.  At  the  expiration  of 
twenty  days  after  the  expiration  of  the  time  of  said  publication  by  said 
street  superintendent,  and  at  the  expiration  of  twenty-five  days  after  the 
advertising  and  posting,  as  aforesaid,  of  any  resolution  of  intention,  if  no 
written  objection  to  the  work  therein  described  has  been  delivered,  as 
aforesaid,  by  the  owners  of  a  major  frontage  of  the  property  fronting  on 
said  proposed  work  or  improvement,  or  if  any  written  objection  purport- 
ing to  be  signed  by  the  owners  of  a  major  frontage  is  disallowed  by  said 
council,  as  not  of  itself  barring  said  work  for  six  months,  because,  in  its 
judgment,  said  objection  has  not  been  legally  signed  by  the  owners  of  a 
majority  of  said  frontage,  the  city  council  shall  be  deemed  to  have  acquired 
jurisdiction  to  order  any  of  the  work  to  be  done,  or  improvement  to  be 
made,  which  is  authorized  by  this  act;  which  order,  wrhen  made,  shall  be 
published  for  two  days,  the  same  as  provided  for  the  publication  of  the 
resolution  of  intention.  Before  passing  any  resolution  for  the  construction 
of  said  improvements,  plans  and  specifications  and  careful  estimates  of  the 
costs  and  expenses  thereof  shall  be  furnished  to  said  city  council,  if 
required  by  it,  by  the  city  engineer  of  said  city;  and  for  the  work  of  con- 
structing sewers,  specifications  shall  always  be  furmsk<*i™by-k«a^  When- 

E  ifiB^Jpr^ 

OF  THE 


10  STREET  WORK  LAW — STREET   IMPROVEMENT   ACT 

ever  the  contemplated  work  of  improvement,  in  the  opinion  of  the  city 
council,  is  of  more  than  local  or  ordinary  public  benefit,  or  whenever, 
according  to  estimate  to  be  furnished  by  the  city  engineer,  the  total  esti- 
mated costs  and  expenses  thereof  would  exceed  one-half  the  total  assessed 
value  of  the  lots  and  lands  assessed,  if  assessed  upon  the  lots  or  land  front- 
ing upon  said  proposed  work  or  improvement,  according  to  the  valuation 
fixed  by  the  last  assessment  roll  whereon  it  was  assessed  for  taxes  for 
municipal  purposes,  and  allowing  a  reasonable  depth  from  such  frontage 
for  lots  or  lands  assessed  in  bulk,  the  city  council  may  make  the  expense 
of  such  work  or  improvement  chargeable  upon  a  district,  which  the  said 
city  council  shall  in  its  resolution  of  intention  deolare  to  be  the  district 
benefited  by  said  work  or  improvement,  and  to  be  assessed  to  pay  the 
eosts  and  expenses  thereof.  Objections  to  the  extent  of  the  district  of ' 
lands  to  be  affected  or  benefited  by  said  work  or  improvement,  and  to  be 
assessed  to  pay  the  costs  and  expanses  thereof,  may  be  made  by  interested 
parties,  in  writing,  within  ten  days  after  the  expiration  of  the  time  of  the 
publication  of  the  notice  of  the  passage  of  the  resolution  of  intention.  The 
city  clerk  shall  lay  said  objections  before  the  city  council,  which  shall,  at 
its  next  meeting,  fix  a  time  for  hearing  said  objections,  not  less  than  one 
week  thereafter.  The  city  clerk  shall  thereupon  notify  the  persons  mak- 
ing such  objections  by  depositing  a  notice  thereof  in  the  postoffice  of  said 
city,  postage  prepaid,  addressed  to  each  objeotor.  At  the  time  specified 
the  city  council  shall  hear  the  objections  urged,  and  pass  upon  the  same, 
and  its  decision  shall  be  final  and  conclusive.  If  the  objections  are  sus- 
tained, all  proceedings  shall  be  stopped;  but  proceedings  may  be  imme- 
diately again  commenced  by  giving  the  notice  of  intention  to  do  the  said 
work  or  make  said  improvements.  If  the  objections  are  overruled  by  the 
city  council,  the  proceedings  shall  continue  the  same  as  if  such  objections 
had  not  been  made.  [Amendment,  approved  March  31,  1891.  Statutes  1891, 
page  192.] 

[Section  3  was  amended  in  1889  by  act  of  March  14, 1889,  Sta.  '89,  p.  158; 
and  again  in  1891, .by  act  of  March  31,  1891,  Sta.  '91,  p.  196.] 

1.  Jurisdiction.  Street  work  under  the  act  is  inaugurated 
by  a  resolution  of  intention,  followed  by  certain  notices  and 
advertised  proposals,  ending  in  a  written  contract.  The 
superintendent  of  streets  is  required  to  approve  the  work, 
when  satisfactorily  performed,  and  to  issue  to  the  con- 
tractor, in  payment  for  the  work-,  an  assessment  upon  the 
adjoining  lots,  or  lots  liable  to  assessment.  Here  the  con- 
cern of  the  city  ends.  The  contractor  assumes  control 
of  all  further  proceedings,  and  the  issuance  of  the  assess- 
ment discharges  the  city  from  all  further  liability  to  him. 
Under  this  system  the  lot  owner  can  set  up  to  defeat  the 
action,  not  only  jurisdictional  defects  in  the  proceedings 
before  the  contract  was  let,  but  also  jurisdictional  defects 
in  the  assessment,  which  assessment,  except  as  provided 
in  section  12i  of  the  act,  can  only  be  made  after 
the  superintendent  of  streets  has  determined  that  the 
contract  has  been  fully  performed.  The  contractor 
cannot  control  the  action  of  the  superintendent,  except 


TTTT>Tar»Tr«T>Tn\r  Sec.  3  as  amended          11 

JURISDICTION  Mnr   31    1K91  -1-  -*• 


Mar.  31,  1S«1. 


by  appeal  to  the  council,  and  he  is  liable  to  lose  the 
entire  reward  of  his  labor  through  ari  oversight  of 
this  officer.  The  proceedings  having  been  held  to  be  in 
invitum,  a  strict  compliance  with  the  statute  is  exacted,  and 
very  frequently  great  hardship  results  without  fault  on  the 
part  of  the  contractor.  Before  the  contractor  can  acquire 
any  rights  under  his  contract,  the  city  council  must  have 
acquired  jurisdiction — that  is  power — to  award  the  con- 
tract, and  the  superintendent  of  streets  must  have  acquired 
jurisdiction  or  power  to  enter  into  and  formally  execute 
the  written  contract.  The  contract  is  in  fact  complete 
when  the  contractor's  bid  is  accepted.  There  is  then  a 
contract  between  the  council  and  the  contractor.  This 
contract  made  by  the  council  is  formally  reduced  to  writ- 
ing by  the  superintendent  of  streets,  and  executed  by  him 
on  behalf  of  the  city  authorities.  [Opinion  of  Temple,  J., 
in  Chambers  v.  Satterlee,  40  Cal.  526.]  Notwithstanding 
the  fact,  however,  that  there  may  be  a  meeting  of  minds 
between  the  city  authorities  and  the  contractor,  and  there- 
fore, theoretically  at  least,  an  agreement,  just  as  soon  as  the 
contractor's  bid  is  accepted,  still  "a  written  contract  duly 
authorized  under  the  act,  and  executed  according  to  its 
requirements  is  indispensable  to  the  validity  of  any  assess- 
ment upon  property  to  pay  for  street  improvements." 
[Dougherty  r.  Hitchcock,  35  Cal.  512.]  There  are  certain 
tilings  required  by  the  statute  which  are  essential  to  the 
acquisition  of  jurisdiction  or  power  to  enter  into  and  execute 
a  valid  contract,  and  for  the  purpose  of  acquiring  this 
jurisdiction  every  one  of  these  essentials  must  be  complied 
with  in  the  manner  and  mode  required  by  the  statute. 
"After  the  jurisdiction  has  once  been  acquired,  subsequent 
proceedings  can  be  attacked  for  only  such  irregularities 
as  affect  substantial  rights,  but  for  the  purpose  of  acquiring 
jurisdiction  every  requirement  must  be  regarded  as  of  equal 
necessity."  [Dehail  v.  Morford,  95  Cal.  460.] 

The  resolution  of  intention,  in  due  form  and  properly 
adopted,  is  the  foundation  of  the  proceedings  to  acquire 
jurisdiction,  but  it  alone  is  not  sufficient  to  clothe  the  city 
authorities  with  jurisdiction  or  power  to  enter  into  and 
execute  a  valid  contract.  To  authorize  a  valid  contract  all 
the  essentials  leading  up  to  its  execution  must  be  complied 
with  in  the  manner  provided  and  required  by  the  statute. 
And  to  authorize  a  recovery  by  the  contractor  after  the 
due  performance  of  the  work  by  him  or  his  assignee,  under 
a  valid  contract,  all  the  essentials  of  a  valid  assessment 
must  be  complied  with.  As  said  by  Mr.  Justice  Temple  in 
Chambers  v.  Satterlee,  40  Cal.  525,  "There  is  no  magic  in 


1  2     STREET  WORK  LAW — STREET  IMPROVEMENT  ACT 

the  fact  that,  after  notice  of  intention,  the  board  acquire 
jurisdiction,  which  will  excuse  to  any  extent,  a  compli- 
ance with  the  requirements  of  the  statute.  The  word  juris- 
diction, of  course,  means  power,  for  there  is  nothing  of  a 
judicial  nature  in  that  portion  of  the  proceedings  which 
relates  to  ordering  the  work  and  letting  the  contract.  There 
is  nothing  peculiar  in  this  statute  in  this  respect.  It  is  gen- 
erally, if  not  always  the  case,  in  statutes  conferring  the 
power  to  divost  vested  rights  that  notice  is  given  to  the 
parties,  whose  rights  are  affected,  as  a  condition  precedent 
to  the  exercise  of  the  power.  The  statutes  in  regard  to 
laying  out  or  changing  highways  provide  for  notice,  which 
must  be  given  before  the  board  has  jurisdiction  to  act;  but  I 
never  heard  the  proposition  advanced  that  this  dispensed  with 
a  full  compliance  with  the  statute,  in  the  exercise  of  the  power j 
after  the  jurisdiction  had  been  acquired."  [See  alsoHewes  v. 
Reis,  40  Cal.  255.] 

Thus,  after  the  proper  adoption  of  a  resolution  of  inten- 
tion, due  posting  and  publication  of  the  same,  and  likewise 
due  posting  and  publication  of  a  proper  notice  of  the  pas- 
sage of  such  resolution,  the  council,  after  the  lapse  of  a 
certain  length  of  time,  if  the  work  is  not  barred  by  a  suf- 
ficient objection  in  writing  by  the  property  owners, 
acquires  jurisdiction  or  power  to  pass  an  order,  ordering 
the  work  to  be  done.  But  this  is  not  sufficient  to  authorize 
the  execution  of  a  valid  contract  by  the  superintendent  of 
streets.  There  are  other  essentials  to  be  done  leading  up 
to  the  execution  of  the  written  contract  with  the  con- 
tractor. After  the  council  has  passed  the  order,  ordering 
the  work  to  be  done,  the  order  must  be  published;  then  a 
notice  inviting  sealed  proposals  must  be  posted  and  pub- 
lished; after  this  the  bids  must  be  considered;  then  the 
contract  must  be  awarded  to  the  lowest  bidder;  after  this 
notice  of  the  awarding  of  the  contract  must  be  posted  and 
published,  and  within  a  certain  time  thereafter — if  nothing 
intervenes  to  prevent,  such,  for  example,  as  an  election  by 
the  property  owners  themselves  to  take  the  work  and  enter 
into  a  contract  to  do  the  same — the  superintendent  acquires 
the  power  to  execute  the  written  contract  with  the  con- 
tractor. But  all  these  things  are  essentials  to  a  valid  con- 
tract. Thus  the  contract  is  not  valid  unless  there  be  a 
valid  award,  and  the  contract  must  follow  the  award.  Any 
substantial  variance  between  the  contract  and  the  award  is 
fatal.  Thus  in  Dougherty  v.  Hitchcock,  35  Cal.  512,  the 
board  of  supervisors  of  San  Francisco  adopted  a  resolution 
of  intention  to  grade  Glay  street  from  Taylor  to  Jones,  and 
from  Jones  to  Leavenworth  streets,  and  the  crossings  of 


Sec.  3  as  amended 
Mar.  31,  1891. 


Clay  and  Jones  streets,  and,  after  ordering  the  work  to  be 
done,  and  after  notice  to  bidders,  awarded  a  contract  for 
the  whole  work.  The  contract  executed  by  the  superin- 
tendent of  streets  was  for  the  grading  of  one  block  only — 
that  from  Jones  to  Leaven  worth.  Held,  that  the 
award  constituted  the  sole  authority  to  the  superintendent, 
who  acted  ministerially  only  in  making  acontract  under  it, 
and  that  the  contract  by  reason  of  variance  between  its 
terms  and  the  award,  was  unauthorized  and  void;  also  that 
a  written  contract  duly  authorized  under  the  act,  and  exe- 
cuted according  to  its  requirements,  is  indispensable  to  the 
validity  of  any  assessment  upon  property  to  pay  for  street 
improvements.  [See  also  Brock  v.  Luning,  89  Gal.  31^; 
Ferine  r.  Forbush,  97  Cal.  305.]  "The  resolution 
of  intention  and  its  publication  confer  upon  the 
council  jurisdiction  to  proceed  in  the  prescribed  mode 
to  order  the  proposed  work  to  be  done,"  [Dougherty 
v.  Hitchcock,  o-~>  Cal.  •""> •_>:]]  that  is,  jurisdiction  to  take  all  the 
stops  necessary  to  the  execution  of  a  valid  contract  eventuat- 
ing in  a  valid  assessment,  but  in  thus  proceeding  to  do  the 
work  proposed  to  be  done,  the  city  authorities  must  pro- 
ceed by  doing  or  causing  to  be  done  all  those  essentials 
pointed  out  by  the  statute..  As  stated  by  Mr.  Justice  San- 
derson in  Nicolsori  Pavement  Co.  v.  Painter,  35  Cal.  705, 
"In  the  matter  of  street  improvements  the  board  of  super- 
visors have  whatever  power  the  statutes  upon  that  subject 
have  conferred  upon  them,  and  no  other;  and  that  the 
power  which  they  possess  must  be  exercised  in  the  mode 
prescribed  by  the  statute,  and  in  no  other;  'the  mode  in  such 
cv/.svs  constitutes  the  measure  of  the  power.'  ' 

When  the  jurisdiction  of  the  council  depends  upon  the 
existence  of  some  fact,  as  to  the  existence  of  which  the 
statute  has  expressly  said  that  the  council  shall  have  the 
power  to  adjudicate  upon,  after  a  hearing  to  those  affected 
thereby,  the  decision  of  the  council  upon  such  fact  is  con- 
clusive. Thus,  for  example,  the  San  Francisco  Street  Law 
Act  of  1871-72  provided  that,  to  start  proceedings  for  grad- 
ing, a  petition  therefor  by  the  owners  of  a  majority  of  the 
frontage  should  be  necessary,  and  expressly  authorized  the 
board  of  supervisors  to  adjudicate  upon  the  fact  as  to 
whether  or  not  the  owners  of  9  majority  of  the 
frontage  had  joined  in  such  petition,  providing  also 
that  the  adjudication  of  such  jurisdictional  fact  by  the 
the  board  should  be  final  and  conclusive  after  a  hearing 
to  the  parties  affected;  and  it  was  held  in  Spaulding  v. 
Homestead  Association,  87  Cal.  40,  that  judgment  of  the 


14     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

council  upon  this  jurisdictional  fact,  after  due  opportunity 
for  hearing,  was  final  and  conclusive. 

In  the  matter  of  Grove  Street,  61  Cal.  453-4,  Mr.  Justice 
McKinstry  said:  "An  inferior  board  may  determine 
conclusively  its  own  jurisdiction  or  power  by  adjudicating 
the  existence  of  facts,  upon  the  existence  of  which  its  juris- 
diction or  power  depends.  Where,  however,  the  power 
depends  not  upon  the  existence  or  non-existence  of  matters 
in  pais,  to  be  established  by  evidence,  but  upon  allegations 
in  a  petition,  a  portion  of  the  record,  the  question  is  not 
the  same."  That  is  to  say,  while  the  council,  for  example, 
might  conclusively  determine,  by  its  decision  thereon,  that 
the  owners  of  a  majority  of  the  frontage  had  actually 
joined  in  signing  the  petition  for  the  work,  provided  an 
opportunity  to  be  heard  is  given  to  those  interested,  still 
its  decision  upon  the  sufficiency  of  the  petition  would  not 
be  conclusive,  where,  for  any  reason,  it  appears  upon  its 
face  to  be  insufficient,  as  where,  for  example,  the  statute 
requires  the  petition  to  state  that  "in. the  opinion  of  the 
petitioners  the  public  interests  require  that  the  improve- 
ment should  be  made,"  and  the  petition  merely  states  that 
"in  the  opinion  of  the  petitioners  the  improvement  asked 
for  should  be  made." 

Not  only  does  the  passage  of  the  resolution  of  in-tention 
and  its  publication  confer  upon  the  council  jurisdiction  or 
power  to  proceed  in  the  mode  prescribed  by  the  statute  to 
take  the  steps  necessary  to  bring  about  the  due  peiform- 
ance  of  the  work  under  a  valid  contract  therefor,  eventuat- 
ing in  a  valid  assessment  and  lien  against  the  property  of 
the  lot  owners,  but  in  the  language  of  Chief  Justice  Sawyer 
in  Dougherty  v.  Miller,  36  Cal.  87,  after  the  expiration  of 
the  notice  of  intention,  the  council  acquires  "juris- 
diction of  the  subject  matter  of  the  improvement." 
Whatever  the  phrase  "subject  matter  of  the  improvement" 
may  mean,  it  was  used  there  as  including  the  lots  fronting 
on  the  street;  so  that  it  was  held  in.  that  case  that,  if,  after 
the  expiration  of  the  notice  of  intention  to  improve,  a  lot 
owner  should  divide  his  lot  by  conveying  to  a  third  party  a 
narrow  strip  along  the  whole  line  of  the  improvement, 
thereby  cutting  off  the  whole  of  the  remainder  from  a 
frontage  on  the  street,  the  owner  thus  separating  the 
remainder  from  a  frontage  upon  the  street,  could  not  in 
this  manner  prevent  the  assessment  attaching  to  the  whole 
lot  as  it  existed  at  the  time  when  the  notice  of  intention 
was  given.  Mr.  Justice  Sawyer,  speaking  for  the  court, 
said:  "The  board  of  supervisors  acquired  jurisdiction  of 
the  subject  matter  of  the  improvement  after  the  expiration 


JURISDICTION  g'^f  Sended          1  5 


of  the  notice  of  intention.  *  *  *  *  *  ^he  juris_ 
diction  when  it  once  attached  [that  is  attached  to 
the  subject  matter  of  the  improvement]  extended 
through  all  subsequent  proceedings  regularly  had,  till 
the  assessment  was  made  and  collected.  That  juris- 
diction could  not  be  ousted  by  the  act  of  a  lot  owner. 
*  *  *  *  *  The  whole  lot  as  it  existed  when  the 
jurisdiction  of  the  board  of  supervisors  attached,  is  liable 
to  be  assessed  upon  the  completion  of  the  work,  no 
matter  who  owns  it,  or  what  subdivisions,  fraudulent, 
fanciful  or  otherwise,  may  subsequently  have  been  made 
by  the  owner." 

*But  while  jurisdiction  of  the  subject  matter  of  the 
improvement  in  the  sense  used  by  the  court  in  this  case  of 
Dougherty  /-.  M  iller,  may  attach  to  the  subject  matter  of 
the  improvement,  upon  the  due  passage  and  publication  of 
the  resolution  of  intention,  nevertheless  jurisdiction  or 
power  to  execute  a  valid  contract  and  make  a  valid  assess- 
ment, so  that  the  contractor  shall  have  a  valid  lien  upon 
the  property  of  the  lot  owner,  does  not  exist  unless  the  con- 
tract and  assessment  are  preceded  by  a  due  performance  of 
all  of  the  jurisdictional  prerequisites,  which  include  the  due 
performance  of  a  large  number  of  necessary  acts.  Thus, 
as  held  in  Dougherty  v.  Hitchcock,  35  Cal.  512,  and  many 
other  cases,  the  superintendent  of  streets  has  no  jurisdic- 
tion or  power  to  execute  a  valid  contract  unless  the  council 
has  previously  made  an  award  of  the  contract,  and  the 
formal  written  contract  must  correspond  with  the  award. 
It  is  often  difficult  to  draw  the  line  of  demarkation 
between  the  necessary  jurisdictional  prerequisites  to  a  valid 
contract  or  a  valid  assessment,  and  those  mere  irregulari- 
ties which  do  not  effect  substantial  rights.  This  question 
frequently  arises  where  the  question  is:  Was  the  irregu- 
larity complained  of  waived  by  a  failure  to  appeal  to  the 
council?  Section  eleven  authorizes  the  property  owner  to 
appeal  to  the  council,  and  by  section  three  he  is  author- 
ized to  file  a  petition  of  remonstrance  at  any  time  before  the 
issuance  of  the  assessment  roll,  wherein  he  can  specify  his 
grievances  and  "such  petition  or  remonstrance  shall  be  passed 
upon  by  the  city  council,  and  its  decision  therein  shall  be  final 
and  conclusive."  The  San  Francisco  street  law  act  of  1862, 
[Statutes  1862,  page  392]  contained  similar  provisions,  and 
it  was  said  in  Emery  v.  Bradford,  29  Cal.  86,  that  "this 
conclusive  determination  on  appeal  doubtless  refers  to 
those  matters  upon  which  the  superintendent  is  required 
in  the  discharge  of  his  duties  to  exercise  his  judgment  — 
those  matters  in  which  his  errors  are  to  be  revised  and 


16     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

corrected.  There  are  acts  to  be  performed  of  a  jurisdic- 
tional  character  essential  to  the  validity  of  any  assessment. 
It  is  not  to  be  supposed  that  the  conclusiveness  of  the 
decision  of  the  board  of  supervisors  is  to  extend  to  that  class 
of  acts.  The  provisions  in  section  twelve  [Section  11  of  the 
Vrooman  Act]  indicate  the  kind  of  errors  upon  which  the 
decisions  of  the  board  are  to  be  final.  It  is  that  'all  the 
decisions  and  determinations  of  said  board,  upon  notice  and 
hearing  aforesaid,  shall  be  final  and  conclusive  upon  all 
persons  entitled  to  an  appeal  under  the  provisions  of  this 
section,  as  to  all  errors  and  irregularities  which  said  board 
could  have  avoided.'  ' 

The  last  clause  of  section  eleven  of  the  Vrooman  act 
(post)  seems  to  make,  or  attempt  to  make,  all  pro- 
ceedings of  the  council,  subsequent  to  the  passage  and 
publication  of  the  notice  of  intention,  unimpeachable, 
unless  an  appeal  has  been  taken  to  the  council  as  provided 
in  that  section.  It  seems,  however,  from  recent  decisions 
of  our  Supreme  Court  that  a  failure  to  appeal  to  the  council 
is  not  a  waiver,  under  this  act,  of  the  right  to  attack  the 
proceedings  in  court,  for  failure  to  comply  with  those  juris- 
dictional  requirements  which  are  to  be  performed 
subsequently  to  the  publication  of  the  notice  of  intention. 
In  Ferine  v.  Forbush,  97  Cal.  305,  the  proceedings 
were  had  and  the  work  done  under  the  act  of  March 
18,  1885.  There  was  no  objection  made  to  the  resolu- 
tion_  of  intention  or  to  the  regularity  of  its  publica- 
tion. It  was  held  that  the  contract  was  void  because 
not  entered  into  within  fifteen  days  after  the  first  posting 
of  the  notice  of  award,  as  required  by  section  5  of 
the  act.  It  was  claimed,  however,  by  the  plaintiff  that, 
even  if  the  contract  were  void  for  this  reason,  the  prop- 
erty owner  could  not  complain  and  the  assessment  could 
not  be  held  invalid,  because  the  property  owner  had  failed 
to  appeal  to  the  city  council  from  the  action  of  the  superin- 
tendent in  entering  into  the  contract  after  the  expiration  of 
fifteen  days  from  the  posting  of  the  notice  of  award.  Held, 
that  the  prdperty  owrner  is  not  required  to  appeal  to  the 
council  when  the  assessment  is  based  upon  an  invalid  con- 
tract. The  same  ruling  was  made  inMcBean  v.  Redick,  96 
Cal.  191,  where  the  proceedings  were  had  and  work  done 
under  the  act  of  March  18,  1885. 

In  Manning  v.  Den,  90  Cal.  610,  the  question  was  directly 
considered.  In  that  case  the  proceedings  and  work  were 
performed  under  the  act  of  March  18,  1885.  It  was  held 
that  the  contract  executed  by  the  superintendent  of  streets 
was  void  because  it  was  entered  into  prior  to  the  expiration 


TrTT»T<Jr»TnTTr>v  Sec  3  as  amended  -i  17 

J  I  KlbDICllOJN  XI....   .;,    ,cn,  I/ 


Mar.  31.  181U. 


of  ten  days  after  the  first  posting  of  notice  of  the  award; 
held,  also,"  that  the  property  owner,  notwithstanding  the 
provisions  of  section  11  of  the  act,  does  not  waive  his  right 
to  object  to  the  proceedings  by  reason  of  his  failure  to  appeal 
to  the  council.  The  court,  quoting  from  Dougherty  v.  Hitch- 
cock, 35  Cal.  524,  said:  "  A  contract  authorized  and  executed  in 
the  mode  prescribed  by  the  act  is  indispensable  to  the  validity 
of  the  assessment.  This  defect  is  not  cured  by  the  failure  of 
the  lot  holders  to  appeal  to  the  board,  because,  had  an 
appeal  been  taken,  the  defect  could  not  have  been  remedied 
by  the  board.  The  premature  action  of  the  superintendent 
was  one  which  affected  his  power  or  jurisdiction.  His 
action  was  void,  and  that  which  ivas  void  does  not  become 
valid  by  reason  of  a  failure  to  appeal.  The  property  owners 
were  not  'aggrieved',  and  the  failure  of  the  contractor  to 
appeal  did  not  operate,  (L)  To  create  a  grievance  on  the 
part  of  defendants  [property  owners  1,  and,  (2.)  To  estop 
them  from  complaining  of  it." 

In  Capron  v.  Hitchcock,  decided  June  3,  1893,  the 
Supreme  Court  said:  "The  provision  authorizing  a  petition 
of  remonstrance  against  the  acts  and  proceedings  of  the 
city  council  was  intended  to  be  applicable  only  to  acts  and 
proceedings  within  the  power  of  the  council." 

In  Dougherty  v.  Hitchcock,  85  Cal.  520,  counsel  for  appel- 
lant said:  "These  provisions  [that  is  provisions  for  appeal] 
cannot  be  regarded  as  furnishing  an  exclusive  remedy  in 
respect  to  proceedings  invalid  for  want  of  jurisdiction. 
Such  a  construction  would  place  the  board  on  a  higher  foot- 
ing than  any  other  tribunal  in  the  state,  and  enable  it  to  act 
independent  of  the  law  from  which  it  derives  its  power. 
Its  proceedings  could  never  be  collaterally  assailed,  and 
whatever  it  chose  to  do  the  courts  would  be  compelled  to 
accept  as  valid  and  binding.  The  objection  we  make  is, 
not  that  the  board  proceeded  irregularly,  but  that  it  acted 
without  jurisdiction." 

(See  this  same  subject  of  apoeal  considered  in  notes  to 
section  eleven  of  the  act,  post.) 

From  the  foregoing  it  appears: 

1.  That  an  assessment   is   not  valid  unless  all  the  juris- 
dictional  prerequisites  or  jurisdictional  acts  are  performed 
by   the   proper  persons,  i.  e.,  all  the   acts   required   by  the 
statute    to    be    done,  and    which    affect    substantial    rights, 
must    be    done,  and  if  any  one  of  them  is  omitted  or  is  not 
done  as  required  by  the  act  the  omission  is  fatal. 

2.  That  if   any   one  of  the  necessary  jurisdictional  acts 
is  not  done  as  required,  the  property   owner  may  defeat  an 
action  upon  the    assessment,  or    what   purports    to  be  the 


18     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

assessment,  even  though  he  has  not  appealed  to  the  coun- 
cil. He  is  not  a  party  "aggrieved"  within  the  meaning  of 
the  act,  and  therefore  need  not  appeal,  and  he  may  thus, 
without  appealing  to  the  council,  defeat  an  action  upon  the 
assessment,  where  one  of  the  jurisdictional  prerequisites  has 
been  omitted,  notwithstanding  the  fact  that  a  resolution  of 
intention  in  due  form  has  been  passed  and  published  in 
the  manner  required  by  the  statute. 

II.  Jurisdictional  Prerequisites.  There  are  ten  things 
required  by  the  act  to  be  done  before  there  is 
a  valid  contract,  each  one  of  which  is  jurisdictional 
and  without  any  one  of  them  there  is  no  valid 
contract  under  which  the  contractor  may  proceed.  An 
omission  of  any  one  of  these  jurisdictional  prerequisites  to 
a  valid  contract  is  fatal.  (There  are  likewise  certain  juris- 
dictional prerequisites  to  a  valid  assessment,  to  be  done 
after  the  written  contract  has  been  entered  into,  and  after 
the  completion  of  the  work  under  the  same  by  the  con- 
tractor. These  jurisdictional  acts  subsequent  to  the  execu- 
tion of  the  contract  are  considered  in  the  notes  to  sections 
eight,  nine  and  ten  (post). 

The  ten  jurisdictional  prerequisites  to  a  valid  contract 
are:  (1.)  Resolution  of  intention,  passed  by  the  council. 
(2.)  Posting  and  publication  of  the  resolution  of  intention. 
(3.)  Posting  and  publication  of  notices  of  the  passage  of  the 
resolution  of  intention.  (4-)  Order  for  the  work  to  be  done, 
or  resolution  for  construction  passed  by  council.  (5.)  Pub- 
lication of  order  for  work  to  be  done.  (6.)  Publication  and 
posting  of  notices  inviting  sealed  proposals.  (7.)  Consider- 
ation of  bids.  (8.)  Award  of  contract  to  lowest  responsible, 
bidder.  (9.)  Publication  and  posting  of  notices  of  award. 
(10.)  Execution  of  written  contract  by  the  superintendent 
of  streets. 

The  first  five  of  these  ten  jurisdictional  prerequisites — 
one  to  five  inclusive — are  provided  for  by  the  above  section 
of  the  act  (section  3)  and  will  therefore  be  considered  in 
these  notes  to  that  section.  The  last  five  of  these  ten  juris- 
dictional acts — six  to  ten  inclusive — are  provided  for  hy 
section  5  of  the  act,  and  will  therefore  be  considered  in  the 
notes  to  that  section. 

In  addition  to  the  said  ten  jurisdictional  prerequisites  to 
a  valid  contract,  it  is  also  required  by  section  2  of  the  act, 
as  amended  in  1893,  that  "whenever  the  grade  of  a  street, 
avenue,  etc.,  shall  hereafter  be  changed,  the  petition  of  the 
owners  of  a  majority  of  the  feet  fronting  thereon,  asking 
for  grading  the  same  to  the  new  grade,  shall  be  a  condition 
precedent  to  the  ordering  of  such  grading  to  be  done." 


RESOLUTION  OF  INTENTION       iR'afiS?****       19 

The  above  division  of  the  jurisdictional  prerequisites, 
precedent  to  the  existence  of  a  valid  contract,  into  ten  in 
number — or  eleven,  where  the  work  to  be  done  is  grading 
and  the  grade  has  been  changed  since  the  amendment  of 
1893  to  section  2 — is  not  to  be  deemed  as  inclusive  of  all  the 
acts  which  circumstances  might  make  necessary  to  the  exist- 
ence of  a  valid  contract.  Thus,  for  example,  a  petition  of 
remonstrance  might,  under  section  3  of  the  act,  be  filed 
by  the  property  owners.  In  such  case  the  council  must 
hear  and  pass  upon  such  petition  of  remonstrance 
before  it  can  proceed  further.  Again,  some  of  the  said  ten 
jurisdictional  acts  might  be  generic  and  include  one  or 
more  other  acts.  Thus,  for  example,  the  second  jurisdic- 
tional act  given  above  is  the  publication  and  posting  of  the 
resolution  of  intention.  But  this  includes  also,  and  as  a 
part  thereof,  the  passage  or  adoption  of  an  order  or  resolu- 
tion by  the  council,  directing  the  resolution  of  inten- 
tion to  be  posted  and  published.  Therefore,  the  above 
division  of  the  necessary  jurisdictional  acts  into  ten  in  num- 
ber, might  be  thought  to  be  more  or  less  arbitrary.  But 
it  is  adopted  because  it  includes  all  these  generic  acts,  which 
are  necessary,  in  any  event,  to  the  existence  of  a  valid  con- 
tract. Circumstances  may  or  may  not,  in  the  course  of  the 
proceedings,  develop  a  necessity  for  other  acts. 

1.  Resolution  of  Intention.  By  subdivision  11  of  section 
7  of  the  act  it  is  expressly  provided  that  "the  council  may 
include  in  one  resolution  and  order  any  of  the  different 
kinds  of  work  mentioned  in  this  act,  and  it  may  except 
therefrom  any  of  said  work  already  done  upon  the  street 
to  the  official  grade." 

The  power  to  include  different  kinds  of  work  in  one 
resolution  has  frequently  been  upheld  under  this  and  other 
acts.  [See  Emery  v.  S.  F.  Gas  Co.,  28  Gal.  346;  Dyer  v.  Hud- 
son, 65  Gal.  374.] 

The  resolution,  to  give  the  council  jurisdiction,  must 
describe  the  work  to  be  done.  [Brady  v.  King.  53  Cal.  44.] 
It  sufficiently  describes  the  work  to  be  done  if  it  declares 
that  the  street  will  be  graded  and  macadamized  from  one 
designated  point  to  another.  [Emery  v.  S.  F.  Gas  Co.,  28 
Cal.  346.]  It  must  specify  the  work  to  be  done.  It  is  not 
sufficient  to  declare  the  council's  intention  to  cause  certain 
repairs  to  be  made  "where  necessary."  [Randolph  v.  Gaw- 
ley,  47  Cal.  458;  Himmelman  v.  McCreery,  51  Cal.  562; 
Richardson  v.  Heydenfeldt,  46  Cal.  68.]  Publication  of  the 
resolution  of  intention,  describing  the  property  affected,  is 
in  the  nature  of  constructive  service  by  publication  of  sum- 
mons in  an  ordinary  action  at  law,  and  as  some  such  con- 


20     STREET  WORK  LAW — STREET  IMPROVEMENT  ACT 

structive  service  is  necessary  to  give  the  council  jurisdic- 
tion over  the  property  to  be  affected,  it  follows  that  the 
resolution  must  describe  the  property,  otherwise  the  prop- 
erty owners  will  have  no  notice.  [See  Boor  man  v.  Santa 
Barbara,  G5  Cal.  313.]  It  need  not,  however,  contain  a 
complete  plan  and  specifications  of  the  proposed  improve- 
ment. It  need  not  describe  the  work  with  any  more  exact- 
ness than  it  is  described  in  the  law  itself.  [Harney  v.  Heller, 
47  Cal.  15.]  When  the  district  assessment  plan  is  adopted 
the  exterior  boundaries  of  the  proposed  district  should  be 
accurately  described  in  th^  resolution.  It  is  not  sufficient 
to  describe  the  land  in  the  district,  as  all  lots  fronting  on 
a  certain  street.  [Dehail  v.  Morford,  95  Cal.  457;  Boorman 
v.  Santa  Barbara,  65  Cal.  313.] 

A  resolution  excepting  that  part  of  a  street  which  a 
railroad  company  is  required  by  law  to  keep  in  order,  i? 
not  void  for  uncertainty  of  description.  As  every  citizen 
is  conclusively  presumed  to  know  this  provision  of  the  law 
he  is  presumed  to  know  the  portions  excepted.  [Whiting 
v.  Townsend,  57  Cal.  515.]  A  resolution  providing  that  a 
particular  crossing  be  planked  and  that  the  angular  corners 
be  reconstructed  sufficiently  describes  the  work.  The 
meaning  of  such  a  resolution  is  that  the  angular  corners 
formed  by  the  crossing  of  the  two  streets  are  to  be  recon- 
structed in  accordance  with  plans  and  specifications  to  be 
prepared  by  the  superintendent  of  streets.  [Deady  v. 
Townsend,  57  Cal.  298.J 

The  resolution  of  the  council  need  not  be  signed  by  the 
mayor  unless  there  is  some  special  provision  of  the  statute 
requiring  the  mayor's  signature.  [Taylors.  Palmer,  31  Cal. 
241;  Baudry  v.  Valdez,  32  Cal.  269.]  Under  the  act  of 
March  18,  1885,  the  resolution  need  not  be  presented  to 
or  approved  by  the  mayor,  provided  it  be  approved  by  a 
three-fourths  vote  of  the  council.  If  it  receives  less  than  a 
three-fourths  vote  of  the  council  it  must  then  be  approved 
by  the  mayor.  [McDonald  v.  Dodge,  97  Cal.  112.] 

The  signature  of  the  clerk,  where  required,  may  be 
printed.  [Williams  v.  McDonald,  58  Cal.  527.] 

2.     Posting  and  Publishing   Resolution (  of  Intention. 

(a.)  Posting.  Prior  to  the  amendment  of  1891  [Statutes 
1891,  page  196]  it  was  held  that  the  act  of  March  18,  1885,  as 
amended  by  the  act  of  1889  [Statutes  1889,  page  157]  did 
not  require  the  resolution  to  be  posted,  where  there  was  a 
paper  in  which  publication  could  be  made,  and  that  if 
there  is  no  such  paper,  then,  and  only  then,  must  the  notice 
be  "posted"  as  provided  in  section  34  of  the  act.  [Washburn 
v.  Lyons,  97  Cal.  314.]  But  section  3  of  the  act  as  it  now  reads, 


POSTING  AND  PUBLISHING  RESOLUTION       v&^SSF***        21 

i.  e.,  as  amended  by  the  net  of  1891  [Statutes  1S91V  page  196] 
expressly  provides  that,  in  addition  to  publication,  the 
resolution  shall  likewise  "be  posted  conspicuously  for  two 
days  on  or  near  the  chamber  door  of  said  council." 

"(b.)  Pnbticntion.  In  addition  to  such  posting  the  resolu- 
tion must  be  "published  by  two  insertions  in  one  or  more 
daily,  semi-weekly,  or  weekly  newpapers  published  and  cir- 
culated in  -aid  city  and  designated  by  said  council  for  that 
purpose." 

l/iider  this  express  provision  of  the  statute  the  council 
must  "designate"  the  paper  in  which  the  resolution  is  to  be 
published.  In  addition  to  "designating"  the  newspaper, 
the  council,  it  seems,  should,  either  in  the  resolution  itself, 
or  by  a  separate  order,  order  that  particular  resolution  to 
be  published  for  the  length  of  time  prescribed  by  law,  in 
some  newspaper  designated  by  the  resolution  or  by  such  sep- 
arate order.  The  usual  method  is  for  the  resolution  itself 
to  direct  its  own  publication  in  a  designated  newspaper. 

It  is  often  customary  for  the  council  or  board  of  super- 
visors, by  an  ordinance  or  resolution  passed  at  the  com- 
mencement of  the  calendar  year,  to  designate  some  news- 
paper as  the  oilicial  newspaper  for  nil  municipal  advertise- 
ments during  that  year.  And  it  has  often  happened  in 
such  case  that  the  resolution  has  been  published  by  the 
clerk  in  such  oilicial  newspaper  without  any  special  order 
therefor,  and  without  any  designation  by  the  council  of  that 
particular  newspaper  for  that  particular  case,  and  the  ques- 
tion has  frequently  arisen  as  to  whether  such  publication 
was  sufficient.  It  would  seem  from  the  plain  letter  of  the 
statute,  as  amended  in  1891,  that  publication  is  not  sufficient 
unless  the  council  in  each  instance  especially  orders  the 
resolution  to  be  published,  and  for  that  purpose  designates 
the  particular  newspaper  for  that  particular  purpose.  The 
statute  says  that  the  resolution  must  be  published  in  a 
newspaper  "designated  by  said  council  for  that  purpose,"  i. 
e.,  for  the  purpose  of  that  particular  resolution,  and  if  the 
council  must  in  each  case  "designate"  the  newspaper  in 
which  the  resolution  is  to  be  published,  it  would  seem  that 
it  must  likewise,  in  each  case  "order"  the  resolution  to  be 
published.  For  designating  the  newspaper  and  ordering 
the  publication  are  so  intimately  blended  that  it  would 
seem  difficult  to  "designate"  the  newspaper  without  also 
ordering  the  publication  to  be  made. 

The  San  Francisco  street  law  act  of  1863,  authorized  the 
board  to  order  the  work  to  be  done  "after  notice  of  their 
intention  so  to  do,  in  the  form  of  a  resolution  describing 
the  work,  and  signed  by  the  clerk  of  said  board,  has  been 


22     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

published  for  a  period  of  ten  days."  In  Chambers  v.  Sat- 
terlee,  40  Cal.  497,  Mr.  Justice  Wallace  held  that  the  publi- 
cation need  not  be  ordered  by  the  board,  while  Justice  Tem- 
ple, page  521,  said:  "The  statute  says  the  board  may  order 
the  work  to  be  done  after  notice  of  their  intention  so  to  do 
(signed  by  the  clerk)  has  been  published  for  ten  days.  As 
I  understand  this  statute,  it  requires  notice  to  be  given  by 
the  board  itself.  At  that  time  there  were  no  parties  to  the 
proceedings,  and  consequently  the  notice  can  be  given  by 
no  one  but  the  board  itself.  The  power  to  grade  streets  is 
in  them,  but  the  very  first  step  in  the  exercise  of  that  power 
is  to  give  the  notice,  or  rather  this  is  a  condition  precedent 
to  their  exercising  the  power  at  all.  The  requirement  that 
the  resolution  shall  be  signed  by  the  clerk  is  directed  to  the 
board  and  not  to  the  clerk.  He  is  the  mere  servant  of  the 
board  and  has  no  power  except  as  their  servant.  The 
provision  only  directs  the  mode  of  attestation  by  the  board. 
The  manner  of  giving  notice  is  by  publishing  the  resolu- 
tion; and  it  seems  to  me  it  must  inevitably  follow  that  the 
publication  must  be  made  by  the  board.  *  *  No  one  is 
authorized  to  contract  for  the  city  and  county  save  the 
board  of  supervisors,  and  I  think  the  publication  required 
by  the  statute  can  only  be  made  by  their  authority,"  that 
is  the  board  must  order  the  publication  to  be  made. 
[Pages  521-522.]  See  Dyer  v.  North,  44  Cal.  160,  for 
explanation  of  Chambers  v.  Satterlee  on  this  point.  In 
Shepard  v.  Colton,  44  Cal.  628,  it  was  held  that  the  notice 
of  award  of  the  contract  was  not  sufficient  because  the 
board  never  passed  any  resolution  directing  a  notice  of  the 
resolution  of  award  to  be  published  in  any  manner. 

In  the  case  of  Chambers  v.  Satterlee,  Judge  Temple  says 
that  "the  publication  must  be  made  by  the  board."  In  the 
same  statute  it  was  provided,  in  the  part  relating  to  sealed 
proposals  for  doing  the  work,  that  the  board,  before  giving 
out  contracts  for  street  work  shall  "cause  notice  to  be 
*  *  *  posted  *  *  *  and  also  published  *  *  * 
inviting  sealed  proposals,"  etc.  [Statutes  1862,  p.  393.] 
In  the  case  of  Meuser  v.  Risdon,  36  Cal.  239,  it  was  held, 
under  the  same  statute  that  was  considered  in  Chambers  v. 
Satterlee,  that  where  a  contractor  fails  to  perform  his 
work,  and  it  becomes  necessary  to  relet  the  contract, 
the  same  course  must  be  pursued  in  reletting;  which 
is  prescribed  in  the  first  instance;  that  the  clerk  has  no 
authority  in  the  first  instance,  independent  of  an  order 
of  the  board  therefor,  to  give  the  notice  inviting  sealed 
proposals,  and  that,  therefore,  in  case  of  such  relet- 
ting, he  has  no  such  power,  independent  of  such  order; 


PUBLISHING  RESOLUTION       f^8.?1^1"1*1       23 


Mar.  31. 


also,  held  tliat  each  proceeding  to  improve  a  street  is  a 'sep- 
arate and  independent  proceeding,  and  must  stand  or  fall 
by  itself,  and  that,  therefore,  authority  cannot  be  conferred 
upon  the  clerk  to  post  notices  by  a  general  resolution  direct- 
ing him  in  all  cases  where  the  contractors  fail  to  perform  to 
re-advertise  for  bids.  If,  therefore,  as  held  by  Mr.  Justice 
Temple  in  Chambers  v.  Satterlee,  the  council  must  make 
the  publication  of  the  resolution  of  intention,  or  cause  it  to 
be  made,  it  must  follow,  under  the  decision  in  Meuser  v. 
Ivisdon,  that  it  can  only  do  so  by  ordering  the  posting 
and  publication  of  the  resolution  in  each  particular  case, 
and  designate,  in  each  particular  case,  the  newspaper  in 
which  the  publication  is  to  be  made.  [See  Donnelly  v. 
Tillman,  47  Cal.  40;  Donnelly  r.  Marks,  47  Gal.  187.] 

However  the  statute  as  it  now  reads  seems  to  settle  all 
doubts  which  formerly  existed  relative  to  the  necessity  fora 
direction  or  order  by  the  council  that  the  resolution  be 
published  as  required  by  law  in  a  newspaper  designated 
"  for  that  purpose"  by  the  council. 

It  must  appear  that  the  newspaper  is  both  published  and 
circulated  in  the  city — either  alone  is  insufficient.  [Has- 
kell  v.  Bartlett,  34  Cal.  2S1.] 

The  act  says  the  resolution  must  be  ''published  by  two 
insertions,"  but  does  not  expressly  except  Sundays  or  other 
non-judicial  days,  rnd  the  question  arises:  Would  the 
publication  be  sufficient  if  one  of  the  days  fell  on  Sunday? 
It  was  held  in  S.  F.  v.  McCain,  50  Cal.  210  and  People  v. 
McCain,  51  Cal.  360,  that  under  the  act  of  April  4,  1870, 
the  resolution  must  be  published  five  days  exclusive  of  Sun- 
day, and  that  the  proceedings  were  void  if  the  fifth  day  fell 
on  a  Sunday.  But  in  that  case  the  statute  required  the 
publication  to  be  made  for  five  days,  "Sundays  and  non- 
judicial  days  excepted,"  whereas  the  present  act  does  not 
thus  expressly  except  Sundays  and  non-judicial  days.  In 
Taylor  v.  Palmer,  31  Cal.  241,  it  was  held  that  the  publica- 
tion was  sufficient  if  published  for  a  period  of  ten  days  only, 
even  though  a  Sunday  should  have  intervened  between  the 
first  and  the  last  insertion.  But  in  that  case  the  statute  only 
required  the  resolution  to  be  published  for  a  period  of  ten 
days,  without  making  any  exception  of  Sundays.  Conse- 
quently the  publication  was  sufficient  if  it  covered  the  period 
of  ten  days;  i.  e.  if  published  every  day,  except  Sundays, 
for  a  period  of  ten  days — not  for  ten  days.  These  cases  do 
not,  on  account  of  the  difference  in  the  reading  of  the 
statutes,  throw  much  light  upon  the  question  arising  under 
the  act  of  March  18,  1885,  as  amended.  In  the  case  of  S. 
&  L.  Society  v.  Thompson,  32  Cal.  347,  it  was  held  that 


24     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

constructive  service  of  summons  by  publication  is  sufficient 
even  if  some  of  the  publications,  including  the  last,  were 
made  on  Sunday.  It  is  a  mere  ministerial  act  and  may  be 
performed  upon  a  dies  non  juridicus..  There  does  not  seem 
to  be  any  reason  why  a  resolution  of  intention  may  not 
likewise  be  published  on  a  Sunday,  or  rather  there  does  not 
seem  to  be  any  reason  why  the  fact  that  one  of  the  publica- 
tions falls  on  a  Sunday,  should  vitiate  the  constructive 
notice  to  property  owners  of  the  passage  of  a  resolution  of 
intention,  any  more  than  that  fact  should  vitiate  the  con- 
structive service  of  a  summons — in  the  absence  of  a  statute 
expressly  excepting  Sundays. 

Furthermore,  it  would  seem  from  the  express  language  of 
the  act  that  part  of  the  publication  may  be  made  on  Sun- 
day, that  is,  that  a  publication  of  the  resolution  of  inten- 
tion on  Saturday  and  the  following  Sunday,  for  example, 
if  made  in  a  daily  newspaper  published  on  Sundays, 
would  be  sufficient.  For  section  34,  subdivision  4, 
expressly  provides  that  all  notices,  resolutions,  orders,  etc., 
when  published  in  a  newspaper  shall  be  published  "as 
often  as  the  same  is  issued." 

A  newspaper  which  is  published  six  days  in  each  week 
is  a  "daily"  newspaper,  [Richardson  v.  Tobin,  45  Cal.  30] 
and  where  the  statute  does  not  specify  a  particular  language 
in  which  it  must  be  published,  a  publication  in  a  German 
newspaper,  but  in  the  English  language,  is  sufficient.  [Id.] 

If  the  resolution  is  not  published  for  the  length  of  time 
required  by  law  the  whole  proceedings  are  void.  [Brady  v. 
Burke,  90  Cal.  1.] 

3.  Posting  and  Publication  of  Notices  of  the  Passage  of  the 
Resolution.  The  superintendent  of  streets  is  required  by  sec- 
tion 3  of  the  act  to  cause  to  be  conspicuously  posted  along  the 
line  of  the  contemplated  work,  at  not  more  than  100  feet  in 
distance  apart,  etc.,  notices  of  the  passage  of  the  resolution. 
Also  to  cause  a  notice,  similar  in  substance,  to  be  published 
for  six  days  in  one  or  more  daily  newspapers,  designated  by 
the  city  council,  or  in  cities  where  there  is  no  daily  news- 
paper, by  one  insertion  in  a  semi-weekly  or  weekly  newspa- 
per, so  published,  circulated  and  designated.  Or,  "in  case 
there  is  no  such  paper  published  in  said  city,  said  notice 
shall  be  posted  for  six  days  on  or  near  the  chamber  door  of 
the  council,  and  in  two  other  conspicuous  places  in  said 
city,"  as  provided  in  sections  3  and  34  of  the  act. 

(a.)  Posting.  The  act  requires  the  notices  to  be  posted 
along  the  line  of  the  contemplated  work,  or,  "when  the  work 
to  be  done  is  only  upon  an  entire  crossing,  or  any  part 
thereof,  in  front  of  each  quarter  block,  or  irregular  block, 


^UNIVERSITY) 


NOTICES  OF  PASSAGE  OF  RESOLUTION       MPjfr.R3^S?nde<J          25 

liable  to  assessment."  [See  section  7,  subdivisions  3,  4,  5 
and  6,  for  mode  of  assessing  for  work  done  on  street  cross- 
ings.] 

In  Miller  v.  Mayo,  88  Cal.  568,  it  was  held  that  where  the 
contemplated  work  is  work  along  a  street  for  two  or  more 
blocks  so  as  to  include  one  or  more  crossings  made  by  the 
intersections  of  other  streets  with  the  street  along  which  the 
work  is  to  be  done,  it  is  sufficient  if  the  notices  required  to 
be  posted  along  the  line  of  the  contemplated  improvement 
are  posted  without  posting  any  notices  in  front  of  the  quar- 
ter blocks  adjoining  and  cornering  upon  the  crossings,  or 
quarter  blocks  liable  to  assessment.  The  reason  is  that  the 
proviso  in  section  3  of  the  act  of  1885,  "  or  when  the  work 
to  be  done  is  the  improvement  of  an  entire  crossing,  in  front 
of  each  quarter  block  liable  to  be  assessed,"  is  in  the  dis- 
junctive, and  is  a  separate  mandate  from  that  with  which  it 
is  connected.  This  is  still  more  clearly  the  case  under  the 
act  as  amended  in  1891.  For,  as  it  now  reads,  the  notices 
are  to  be  posted  in  front  of  the  quarter  blocks  cornering 
upon  a  crossing,  "when  the  work  to  be  done  is  only  upon  an 
entire  crossing  or  any  part  thereof."  Accordingly,  when 
the  proposed  work  is  along  a  street,  causing  notices  to  be 
posted  along  the  line  of  the  contemplated  work,  i.  e.  along 
the  street  at  not  more  than  100  feet  in  distance  apart,  but 
not  less  than  three  in  all,  is  sufficient  even  if  one  or  more 
crossings  are  included.  But  when  the  work  to  be  done  is 
only  upon  an  entire  crossing,  or  any  part  thereof,  the  notices 
must  be  posted  in  front  of  each  quarter  or  irregular  block 
adjoining  and  cornering  upon  the  crossings,  or  quarter 
blocks  liable  to  be  assessed. 

(b.)  Publishing.  The  act  likewise  requires  the  superin- 
tendent of  streets  to  cause  to  be  published  a  notice  of  the 
passage  of  the  resolution,  similar  in  substance  to  the  notices 
to  be  posted.  It  need  not  be  exactly  identical  in  all  respects, 
provided  it  be  "similar  in  substance."  It  must  be  pub- 
lished for  six  days,  if  there  be  a  daily,  semi-weekly  or 
weekly  newspaper  printed  and  circulated  in  the  city.  If 
there  is  no  such  paper,  it  must  be  posted  for  six  days  on  or 
near  the  chamber  door  of  the  council  and  in  two  other 
conspicuous  places. 

A  notice  published  by  the  superintendent  of  streets,  con- 
taining the  whole  of  the  resolution  of  intention,  and  stating 
the  date  and  fact  of  its  passage,  is  sufficient,  and  is  not  ren- 
dered defective  because  of  an  omission  to  refer  to  the  reso- 
lution for  further  particulars.  [Schmidt  v.  Market  St.  R. 
R.  Co.,  90  Cal.  37.] 


26  STREET  WORK  LAW — -STREET    IMPROVEMENT    ACT 

4-  Order  for  the  Work  to  be  Done.  A  certain  length  of 
time  after  the  posting  and  publication  of  the  notices  of  the 
passage  of  the  resolution  of  intention  is  allowed  the  property 
owners  within  which  to  file  written  objections  to  the  doing 
of  the  proposed  work.  In  some  kinds  of  work,  the  filing  of 
such  written  objections  by  the  owners  of  a  majority  of  the 
frontage  operates  as  a  bar  to  further  proceedings  for  six 
months.  In  other  classes  of  work,  e.  g.,  sewers,  man-holes, 
etc.,  the  council,  after  the  filing  of  such  written  objections, 
and  notices  to  the  objectors,  may  determine  to  go  on  with 
the  work  notwithstanding  the  objections.  Nor  will  a  pro- 
test against  the  proposed  work  by  the  owners  of  a  majority 
of  the  frontage  bar  further  proceedings  when  the  proposed 
work  is  to  be  done  in  a  block  lying  between  blocks  which 
have  already  been  graded  or  otherwise  improved.  And  in 
such  case  the  work  shall  not  be  stayed,  unless  the  council 
deem  proper.  Accordingly,  when  such  objections  have  been 
filed,  and  the  judgment  of  the  trial  court  is  nevertheless  in 
favor  of  the  assessment  for  work  done  upon  a  block,  it  will  be 
presumed  on  appeal,  unless  the  contrary  appear  in  the 
record,  that  the  block  in  question  was  between  graded  blocks. 
[McDonald  v.  Dodge,  97  Cal.  112. J 

At  the  expiration  of  twenty  days  after  the  expiration  of  the 
time  of  the  publication  of  the  notices  of  the  passage  of  the 
resolution,  and  at  the  expiration  of  twenty-five  days  after  the 
advertising  and  posting  of  the  resolution  of  intention,  if 
further  proceedings  have  not  been  barred  or  ceased  by  reason 
of  the  filing  of  written  objections,  the  council  has  "jurisdic- 
tion to  order  any  of  the  work  to  be  done  or  improvement  to 
be  made." 

The  council,  when  it  has  thus  acquired  jurisdiction  to 
order  the  proposed  work  to  be  done,  should  then  make  and 
pass  such  an  order. 

The  order  that  the  proposed  work  be  done  is  not  an 
"ordinance,"  and  need  not  follow  the  for  mof  ordinances. 
[City  of  Napa  v.  Easter-by,  76  Cal.  222.]  An  order  for  street 
work,  made  after  the  council  has  acquired  jurisdiction,  is 
in  the  nature  of  a  judgment.  The  subsequent  proceedings 
$i&.  ministerial  in  their  character,  and  are  taken  for  the 
purpose  of  carrying  the  order  into  execution,  and  for  this 
reason,  if  the  contractor  fails  to  enter  upon  the  performance 
of  his  work  within  the  time  fixed  in  his  contract  the  coun- 
cil may  re-advertise  for  bids  and  relet  the  contract  without 
taking  steps  to  acquire  jurisdiction  as  in  the  first  instance. 
[Do.ugherty  v.  Foley,  32  Cal.  402.] 

In  Burnett  v.  Sacramento,  12  Cal.  76,  it  was  held  that  an 
ordinance  for  the  improvement  of  streets,  passed  by  the 


ORDER  TO  DO  THE  WORK 

council  before  the  expiration  of  the  time  for  the  presenta- 
tion of  the  protest,  was  not  thereby,  under  the  then  charter 
of  Sacramento,  invalid.  It  is  doubtful  if  an  order  for  work 
passed  before  the  time  for  protest  had  expired,  would  be 
valid  under  the  present  general  law — the  act  of  March 
18,  1885.  This  act  says  that  "at  the  expiration 
of  twenty  days  after  the  expiration  of  the  time 
of  said  publication  by  said  street  superintendent," 
etc.,  the  city  council  shall  be  deemed  to  have  acquired  juris- 
diction to  order  the  work  to  be  done.  And  upon  the  prin- 
ciple of  expressio  unius  etc.,  it  would  seem  that  the  council 
has  no  jurisdiction  to  make  such  an  order  until  after  the 
expiration  of  the  time  for  the  presentation  of  the  protest. 

Parties  who  do  not  remonstrate  against  a  proposed  street 
improvement,  can  not  claim  the  benefit  of  a  remonstrance 
filed  by  others.  [Handy  v.  Heller,  47  Cal.  15.] 

5.  Publication  of  Order  to  do  Work.  Section  3  of  the 
act  provides  that  the  order  to  do  the  work  when  made  or 
passed  by  the  council  "shall  be  published  for  two  days,  the 
same  as  provided  for  the  publication  of  the  resolution  of 
intention."  The  same  section  provides  that  the  resolution 
shall  be  published  as  follows:  It  shall  be  "published  by 
two  insertions  in  one  or  more  daily,  semi-weekly  or  weekly 
newspapers  published  and  circulated  in  said  city,  and 
designated  by  said  council  for  that  purpose."  By  sub-division 
4  of  section  34  of  the  act,  it  is  provided  that  "the  notices, 
resolutions,  orders,  or  other  matter  required  to  be  published 
by  the  provisions  of  this  act,  *  *  *  *  s}la]i  be  pub- 
lished in  a  daily  newspaper,  in  cities  where  such  there  is, 
and  where  there  is  no  daily  newspaper,  in  a  semi-weekly  or 
weekly  newspaper,  to  be  designated  by  the  council  of  such 
city,  as  often  as  the  same  is  issued."  From  which  it  fol- 
lows (1}  that,  if  there  be  a  daily  newspaper,  the  order 
should  be  published  in  a  daily  newspaper,  and  in  a  semi- 
weekly  or  weekly  newspaper  only  when  there  is  no  daily 
newspaper  published  and  circulated  in  the  city;  (2)  that 
the  council  should  either  in  the  order  for  work  itself,  or  in 
a  separate  order  or  resolution,  designate  the  paper  in  which 
it  is  to  be  published,  and  (3)  that  it  should  be  published 
as  often  as  the  paper  is  issued,  i.  e.  if  published  in  a  daily 
newspaper,  for  example,  it  should  be  published  two  days  in 
immediate  succession,  without  any  intervening  day  of 
non-publication,  provided  the  paper  is  issued  on  such  inter- 
vening da}7. 

The  order  may  perhaps  refer  to  certain  maps  on  file  in 
the  street  superintendent's  office,  and  while  by  a  fiction  of 
law,  such  maps  by  such  reference,  become  constructively 


28     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

and  for  certain  purposes,  a  part  of  the  order,  still  it  seems 
they  need  not  be  published  as  a  part  of  the  order.  [City  of 
Napa  v.  Easterby,  76  Cal.  222.] 

III.  "Petition  of  Remonstrance"  and  "  Written  Objections." 
The  first  five  steps  to  be  taken  in  the  proceedings  to  acquire 
jurisdiction  to  enter  into  and  execute  a  valid  contract,  viz: 
(1)  Passage  of  resolution  of  intention;  (2)  posting  and  pub- 
libhing  the  resolution;  (3)  posting  and  publishing  notices 
of  the  passage  of  the  resolution;  (4)  passage  of  order  for  the 
work  to  be  done,  and  (5)  publication  of  the  order  to  do  the 
work,  have  been  described  above  in  the  notes  to  this  section. 
The  remaining  five  steps  necessary  to  the  execution  of  a 
valid  contract  are  described  in  the  notes  to  section  five, 
infra.  There  are  certain  other  requirements  of  this  section, 
(section  3),  which  must  be  complied  with  if  occasion  gives 
rise  to  them,  e.  g.,  if  written  objections  to  sewer  work  be 
filed  notices  must  be  mailed  to  each  objector  by  the  clerk, 
etc.  These  other  requirements  will  be  considered  under 
the  heading  "Written  Objections,"  and  "Petition  of  Remon- 
strance." 

1.  Petition  of  Remonstrance.  The  "Written  Objections" 
must  not  be  confounded  with  the  "Petition  of  Remonstrance." 
The  object  of  the  former  is  to  enable  a  certain  proportion  of 
the  property  owners,  by  filing  written  objections,  to  bar  all 
further  proceedings  for  six  months — as  respects  some  classes 
of  work — or,  as  respects  other  classes  of  work,  to  call  forth 
the  decision  of  the  council  as  to  whether  or  not  the  pro- 
ceedings shall  be  continued.  The  object  of  the  "Petition  of 
Remonstrance"  is  to  enable  any  property  owner,  who  may 
feel  aggrieved  because  the  proceedings  have  not  been  regu- 
larly conducted,  or  because  of  some  inequity,  to  appeal  to 
the  council,  and  there  have  his  grievance  passed  upon. 
The  written  objections  must  be  filed  with  the  clerk  within 
a  certain  time  after  notice  to  the  property  owners  of  the 
council's  intention  to  do  the  work,  viz.,  within  ten  days 
after  the  expiration  of  the  time  of  the  publication  and  post- 
ing of  the  notices  of  the  passage  of  the  resolution,  if  the 
front  foot-plan  of  assessment  is  adopted,  and  must,  in  that 
case,  in  order  to  effect  a  six  months'  bar  of  the  proceedings, 
be  signed  by  the  owners  of  a  majority  of  the  frontage.  The 
delivery  of  such  written  objections  to  the  clerk  within  said 
time  operates  ipso  facto  to  bar  any  further  proceedings  for 
six  months,  except  in  certain  specially  excepted  cases,  such  as 
sewers,  man-holes,  etc.  The  provision  for  the  filing  of 
"written  objections,"  signed  by  the  owners  of  a  majority 
of  the  frontage,  is  intended  to  enable  the  owners  of  a 
majority  of  the  frontage  to  determine  for  themselves,  in 


PETITION  OP  REMONSTRANCE       Mar.331818™iended         29 

some  cases,  whether  the  proposed  work  shall  be  done,  or, 
in  the  excepted  cases,  such  as  sewers,  etc.,  to  call  forth  the 
decision  of  the  council  as  to  the  wisdom  or  desirability  of 
further  continuance  of  the  proceedings.  It  has  no  neces- 
sary connection  with  the  question  as  to  whether  the  pro- 
ceedings, assessments,  etc.,  are  regular  or  just  and  equitable 
in  their  nature.  But,  if  any  of  the  property  owners,  even  less 
than  a  majority  of  the  frontage,  deem  the  work  inadvisable,  or 
that  it  would  work  a  hardship  or  inequalities,  or  if  there 
has  been  any  inequality  or  irregularity  in  the  proceedings 
of  the  council  in  relation  to  the  performance  of  the  work, 
a  "petition  of  remonstrance"  may  be  filed.  Unlike 
the  "  written  objections,"  the  "  petition  of  remonstrance  " 
ni.'iv  be  filed  "at  any  time  before  the  issuance  of  the  assessment 
roll,''  and  by  any  owner  or  "owners  of  lots  or  lands  liable  to 
assessment  thereon,  who,  after  the  first  publication  of  said 
notice  of  intention,  may  feel  aggrieved,  or  who  may  have 
objections  to  any  of  the  subsequent  proceedings  of  said  coun- 
cil in  relation  to  the  performance  of  the  work  mentioned  in 
said  notice  of  intention  *  *  *  such  petition  or  remon- 
strance shall  be  passed  upon  by  the  said  city  council,  and 
the  decision  therein  shall  be  final  and  conclusive."  The 
object  of  this  petition  of  remonstrance  is,  not  to  stop  or  bar 
the  work  or  proceedings,  as  in  the  case  of  written  objections; 
but  to  enable  any  owner  or  owners  of  land  liable  to  assess- 
ment to  point  out  wherein  the  proceedings  are  unjust  or 
inequitable,  or  irregular.  The  council  may  pass  upon  the  peti- 
tion or  remonstrance,  and  in  doing  so  it  exercises  quasi  judi- 
cial functions,  and  it  may  correct  the  alleged  abuse  or  not,  or 
may  find  that  there  is  no  substantial  irregularity,  and  if 
there  be  none — that  is,  no  irregularity  of  a  jurisdictional 
nature — its  decision  is  final  and  conclusive.  Whereas,  when 
the  written  objection  is  delivered  to  the  clerk,  signed  by  the 
owners  of  a  majority  in  frontage,  the  council  exercises  no 
judicial  function  whatever  except  in  the  especially  excepted 
cases  of  sewers,  man-holes,  etc.,  and  except  that  it  may  deter- 
mine whether  the  petition  has  been  signed  by  a  majority  of 
the  frontage  or  not,  in  which  respect,  it  seems,  its  decision 
would  be  final  and  conclusive.  [Spaulding  v.  Homestead 
Ass'n,  87  Cal.  40;  In  re  Grove  Street,  61  Cal.  453-4.]  It 
has  no  discretion  in  the  matter,  (except  when  the 
proposed  work  is  the  construction  of  sewers,  man-holes, 
etc.)  but  must,  nolens  volens,  stop  all  proceedings  for  six 
months.  The  object  of  the  "petition  of  remonstrance"  is 
to  secure  to  each  individual  his  constitutional  right  which 
guarantees  that  he  shall  not  be  deprived  of  his  property 
without  "due  process  of  law."  Compliance  with  this  con 


30      STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

stitutional  safeguard  requires  that  the  act  should  provide 
for  due  notice  to  the  property  owner,  and  afford  him  an 
opportunity  to  be  heard.  The  posting  and  publication  of 
the  resolution  of  intention  and  the  posting  and  publication 
of  the  notices  of  the  passage  of  the  resolution  of  intention 
constitute  such  "due  notice,"  when  read  in  conjunction  with 
all  the  provisions  of  the  act,  as  they  should  be;  and  the 
provision  for  the  filing  of  the  "petition  of  remonstrance" 
would  seem  to  afford  sufficient  opportunity  for  a  hearing. 
"  When  a  hearing  is  given  by  the  act,  as  to  the  apportion- 
ment among  the  land  owners,  which  furnishes  to  them  an 
opportunity  to  raise  all  pertinent  and  available  questions, 
and  to  dispute  their  liability,  or  its  amount  and  extent,  such 
hearing  is  sufficient,  and  the  act  is,  in  this  respect,  consti- 
tutional." [See  Spencer  v.  Merchant,  125  U.  S.  345;  Wal- 
ston  v.  Nevin,  128  U.  S.  578;  Davidson  v.  New  Orleans,  96 
U.  S.  97;  Hagar  v.  Reclamation  District,  111  U.  S.  701; 
Palmer  v.  McMahon,  10  Supreme  Court  Rep.  324;  Lent  v. 
Tillson,  72  Gal.  404.] 

If  a  petition  of  remonstrance  is  filed  with  the  council,  and 
is  referred  to  a  committee,  and  the  council,  before  the  com- 
mittee reports,  and  without  acting  directly  on  the  petition 
or  remonstrance,  directs  the  work  to  be  done,  it  is  practi- 
cally and  in  effect  a  passing  upon  and  a  decision  against  the 
petition  or  remonstrance.  [Harney  v.  Heller,  47  Cal.  15.] 

This  part  of  section  3  of  the  Vrooman  act,  providing  for 
a  petition  of  remonstrance,  in  reality  provides  for  an  appeal 
to  the  council,  and  should  be  read  in  connection  with  sec- 
tion 11  of  the  act  (post)  which  section  provides  for  appeals 
to  the  council  and  the  procedure  therein.  For  a  further 
consideration  of  this  subject — "petition  of  remonstrance" 
and  "appeal  to  council" — see  notes  under  section  11  infra. 

2.  "  Written  Objections."  The  effect  of  filing  the  written 
objections,  the  time  of  filing  the  same,  and  the  number  of 
property  owners  who  must  sign,  depend  upon  the  class  of 
work  to  be  done,  and  whether  the  front-foot  or  district 
assessment  plan  is  adopted.  For  the  purpose  of  determin- 
ing the  effect  of  filing  the  objections,  etc.,  the  work  which 
the  act  authorizes  the  council  to  do,  is  divisible  into  three 
classes,  viz: 

(a.)  First  Class.  The  first  class  includes  any  work  author- 
ized by  section  2  of  the  act,  excepting  that  mentioned  in  the 
next  class  below  [see  second  class,  infra,  p.  32]  i.  e.  all  work 
other  than  sewers,  man-holes,  etc.,  provided  the  proposed 
work  is  for  one  block  or  more,  and  it  is  proposed  to  follow  the 
front-foot  plan  of  assessment.  In  this  class  the  owners  of  a 
majority  of  the  frontage  may  make  a  written  objection  within 


WRITTEN  OBJECTIONS  Er'ffSBI^ **       31 

ten  days  after  the  expiration  of  the  time  of  the  publication 
and  posting  by  the  superintendent  of  streets  of  the  notices  of 
the  passage  of  the  resolution  of  intention.  The  objection  must 
be  delivered  to  the  clerk,  who  shall  endorse  thereon  the  date 
of  its  reception  by  him,  and  such  objections  so  delivered  and 
indorsed  shall  be  a  bar  for  six  months  to  any  further  proceed- 
ings, unless  the  owners  of  one-half  or  more  of  the  frontage 
shall  meanwhile  petition  for  the  same  to  be  done.  In  this 
class  of  work  the  filing  of  the  written  objections  by  a  majority 
of  the  frontage  works  a  bar  of  six  months  ipso  facto,  and  the 
bar  continues  for  six  months,  "unless  the  owners  of  the  one- 
half  or  more  of  the  frontage,  as  aforesaid,  shall  meanwhile 
petition  for  the  same  to  be  done." 

In  Dougherty  v.  Harrison,  54  Cal.  428,  it  was  held  that 
where  the  work  has  been  barred  for  six  months  by  the 
filing  of  sufficient  objections,  and,  before  the  expiration  of 
the  six  months,  proceedings  are  resumed,  the  burden  of 
proof  is  upon  those  asserting  the  validity  of  the  proceedings 
to  prove  that  the  bar  effected  by  the  objections  has  been 
removed  by  the  filing  of  a  petition,  pending  the  bar,  by 
one-half  or  more  of  the  frontage,  petitioning  for  the  work  to 
be  done,  and  in  the  absence  of  such  proof,  it  will  not  be 
presumed  prima  facie  even  that  the  bar  was  removed.  The 
court  said:  "The  protest  or  written  objections  of  the  prop- 
erty owners  introduced  in  evidence  displaced  the  prima 
facie  proof  of  regularity  made  by  the  warrant,  assessment 
and  diagram  introduced  by  plaintiff,  and  throw  upon  him 
(plaintiff)  the  burden  of  showing  that  the  bar  effected  by 
the  objections  on  file  had  been  removed.  The  bar  existing, 
the  proceedings  subsequent  thereto  were  irregular  and  void." 

The  statute,  infereutially  at  least,  authorizes  the  council 
to  decide  whether  the  written  objection  has  been  legally 
signed  by  the  owners  of  a  majority  of  the  frontage.  It 
provides  that  "at  the  expiration  of  twenty  days  after  the 
expiration  of  the  time  of  said  publication  by  said  superin- 
tendent [of  notice  of  the  passage  of  the  resolution  of  inten- 
tion] *  *  *  if  any  written  objection  purporting  to  be 
signed  by  the  owners  of  a  major  frontage  is  disallowed  by 
said  council,  as  not  of  itself  barring  said  work  for  six 
months,  because  in  its  judgment,  said  objection  has  not  been 
legally  signed  by  the  owners  of  a  majority  of  said  frontage,  the 
city  council  shall  be  deemed  to  have  acquired  jurisdiction," 
etc.  And  it  would  seem  from  the  ruling  in  Spaulding  v. 
Homestead  Ass'n,  87  Cal.  40,  that  the  judgment  of  the. 
council  upon  the  question  as  to  whether  or  not  the  owners 
of  a  majority  of  the  frontage  have  legally  signed  the  petition 
or  not  is  final  and  conclusive,  although  the  act  does  not 


32     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

expressly  say  so.  To  give  the  ruling  of  the  council  the 
effect  of  a  conclusive  determination,  it  must  be  an  adjudica- 
tion upon  the  existence  of  facts,  or  matters  in  pais,  to  be 
established  by  evidence  dehors  the  petition  itself.  [In  re 
Grove  Street,  61  Cal.  453-4.] 

As  to  who  are,  for  the  purposes  of  the  act,  deemed  to  be 
"owners,"  see  section  16  of  the  act,  infra. 

(b.)  Second  Class.  The  second  class  of  work  or  improve- 
ment includes  "the  construction  of  sewers,  man-holes,  cul- 
verts, or  cesspools,  crosswalks,  or  sidewalks,  and  curbs;  also 
any  work  or  improvement  upon  the  intervening  ungraded 
or  unimproved  part  of  a  street,  where  not  more  than  two 
blocks,  including  street  crossings,  remain  ungraded  to  the 
official  grade,  or  otherwise  unimproved,  in  whole  or  in  part, 
and  a  block  or  more  on  each  side  upon  said  street  has 
been  so  graded  or  improved,  so  that  the  two  blocks  or  less, 
ungraded  or  unimproved,  lie  between  blocks  which  have 
been  already  graded  or  improved.  [See  McDonald  v.  Dodge, 
97  Cal.  112.]  The  second  class  also  includes  work  upon 
not  more  than  two  blocks  at  the  end  of  a  street  remaining  so 
ungraded  or  otherwise  unimproved;  also  work  or  improve- 
ment upon  the  unimproved  or  ungraded  portion  of  a  street 
lying  and  being  between  two  successive  main  street  crossings, 
where  one-half  or  more  in  width  or  in  length  of  such  street 
has  been  already  partially  graded  or  improved,  also  work 
upon  a  crossing  that  has  been  already  partially  graded  or 
improved. 

The  filing  of  written  objections  does  not  ipso  facto  bar 
proceedings  under  this  second  class,  but  the  council  may 
proceed  with  the  work,  notwithstanding  the  filing  of  written 
objections,  if  they  deem  proper.  Provision  is  also  made  by 
the  act  for  a  hearing  upon  the  objections  filed,  after  notice 
served  by  the  clerk  upon  the  objectors  through  the  mails, 
where  the  proposed  work  is  the  construction  of  sewers, 
man-holes,  culverts,  or  cesspools,  crosswalks  or  sidewalks, 
and  curbs.  At  the  hearing  the  council  hears  and  passes 
upon  the  objections  urged,  and  its  decision  is  final  and  con- 
clusive, and  the  bar  for  six  months  does  not  apply. 

Section  24  of  the  act  likewise  provides  that  none  of  the 
work  or  improvements  described  in  said  section  24,  namely, 
work  upon  sewers,  gutters,  man-holes,  culverts,  cesspools, 
crosswalks  and  sidewalks,  shall  be  stayed  or  prevented  by 
any  written  or  any  other  remonstrance  or  objection,  unless 
the  council  deems  proper. 

(c.)  Third  Class.  The  third  class  of  work  includes  any 
of  the  work  or  improvement  authorized  by  section  2  of  the 
act,  where  the  council,  deeming  the  work  to  be  of  more 


DISTRICT  ASSESSMENTS  iS?£SS^          33 

than  local  or  ordinary  public  benefit,  or  that  the  total  esti- 
mated costs  and  expenses  will  exceed  one-half  the  total 
assessed  value  of  the  lots  and  hinds  assessed — if  the  front- 
foot  plan  should  be  adopted — determines  to  make  the 
expense  of  the  work  or  improvement  chargeable  upon  a 
district.  In  other  words,  the  third  class  includes  all  work 
done  under  the  district  assessment  plan.  Where  the  district 
assessment  plan  is  adopted,  the  council  must  in  its  resolu- 
tion of  intention  describe  the  district  [Dehail  v.Morford,95 
Cal.  457;  Boorman  v.  Santa  Barbara,  65  Cal.  313;  Lent 
r.  Tillson,  72  Cal.  404-410]  and  declare  it  to  be  the  dis- 
trict to  be  benefited  by  said  work  or  improvement, 
and  to  be  assessed  to  pay  the  costs  and  expenses 
thereof.  Objections  in  writing  to  the  extent  of  the  dis- 
trict may  be  filed  within  ten  days  after  the  expiration 
of  the  time  of  the  publication  of  the  notice  of  the  passage  of 
the  resolution  of  intention.  The  clerk  serves  notices  upon 
the  objectors,  through  the  mail,  of  the  time  and  place  set 
for  hearing.  At  the  hearing  the  council  passes  upon  the 
objections,  and  its  decision  is  iinal  and  conclusive.  If  the 
objections  are  sustained,  all  proceedings  are  stopped;  if 
overruled,  the  proceedings  continue  as  if  no  objections  had 
been  made. 

IV.  District  Assessments.  Section  3  of  the  Vrooman  act, 
as  amended  in  1891  [Statutes  1891  p.  198]  provides  that  the 
council,  instead  of  following  the  front-foot  plan  of  assess- 
ment provided  for  by  the  act,  may  make  the  expense  of  the 
work  chargeable  upon  a  district  in  two  cases,  viz: 
1st.  Whenever  the  contemplated  work  or  improvement,  in 
the  opinion  of  the  council,  is  of  more  than  local  or  ordinary 
public  benefit;  or  £W.  Whenever,  according  to  estimates  to 
be  furnished  by  the  city  engineer,  the  total  estimated  cost 
and  expenses  would  exceed  one-half  of  the  total  assessed 
value  of  the  lots  and  lands  assessed,  if  assessed  upon  the  lots 
and  lands  fronting  upon  said  proposed  work  or  improve- 
ment, etc. 

It  was  held  in  Kreling  v.  Muller,  86  Cal.  465,  that  under 
the  act  of  March  18,  1885,  the  Vrooman  act,  a  lot  can  not 
be  charged  in  a  greater  sum  than  one-half  of  its  value  upon 
the  preceding  assessment  roll.  Therefore,  under  the  act 
of  1885,  prior  to  the  amendments  of  1889  and  1891,  if  the 
contemplated  work  or  improvement  would,  according  to 
the  estimate  furnished  by  the  city  engineer,  cost  more  than 
one-half  of  the  assessed  value  of  the  lots  to  be  assessed,  or 
any  of  them,  under  the  front-foot  plan  of  assessment,  the 
council  had  no  option  but  either  to  adopt  the  district 
assessment  plan,  and  declare  in  its  resolution  the  district 


34  STREET  WORK  LAW — 'STREET   IMPROVEMENT   ACT 

to  be  assessed,  or  else  pay  all  over  one-half  of  such  assessed 
value  of  any  lot  or  lots  out  of  the  city  funds.  The  decision 
in  this  case  is  based  upon  the  provisions  of  sections  3  and 
7  (sub.  1  of  section  7)  of  the  act  of  1885,  as  those  sections 
stood  prior  to  the  amendments  of  1889  and  1891.  Sec- 
tion 3  of  the  act  of  1885,  prior  to  these  amendments,  provided 
that  whenever  the  expense  exceeded  one-half  of  the  assessed 
value  of  any  lot,  the  amount  exceeding  such  one-half 
"shall"  be  paid  out  of  the  city  treasury,  unless  the  owner 
shall,  in  writing,  consent  that  the  whole  expense  may  be 
made  a  charge  against  the  lot.  Section  7,  subdivision  1,  pro- 
vided, in  substance,  that  such  excess  "shall"  not  be  assessed 
upon  the  lot,  but  shall  be  assessed  to  the  city  and  be  pay- 
able out  of  the  city  treasury.  These  mandatory  provisions 
of  the  statute,  in  express  terms  forbidding  a  lot  to  be 
charged  with  more  than  one-half  of  its  assessed  value,  were 
swept  away  by  the  amendments  of  1889,  [Statutes  1889,  pp. 
159,  160,  163]  and  likewise  by  the  amendments  of  1891, 
[Statutes  1891,  pp.  198,  201]  the  amendments  of  1891  being 
in  this  respect  similar  to  the  amendments  of  1889,  and  the 
act  as  it  now  reads  simply  provides  that  whenever,  accord- 
ing to  the  estimates  to  be  furnished  by  the  city  engineer, 
the  total  estimated  costs  and  expenses  would  exceed  one- 
half  the  total  assessed  value  of  the  lots  and  lands  assessed,  if 
assessed  upon  the  front-foot  plan,  etc.,  the  city  council  "may" 
make  the  expense  chargeable  upon  a  district.  There  does 
not,  therefore,  seem  to  be  any  reason  why,  under  the  act  of 
1885,  as  it  now  reads,  that  is,  as  amended  by  the  amenda- 
tory act  of  1891,  the  whole  lot  may  not  be  taken  to  pay  for 
the  improvement.  The  legislature  has  no  power  to  author- 
ize a  personal  judgment  against  the  person  whose  property 
is  assessed,  [Taylor  v.  Palmer,  31  Cal.  241]  but  the  whole  of 
the  lot  itself  may  be  taken  to  pay  for  the  improvement,  if 
there  be  no  contrary  provision  in  the  statute  and  if  the 
lot  may  be  fairly  deemed  to  be  benefited  by  the  improve- 
ment. It  seems,  therefore,  that  under  the  act,  as  it  now 
reads,  the  council  may  adopt  the  district  assessment  plan, 
in  those  cases  where,  under  the  front-foot  plan,  more  than 
half  of  the  assessed  value  of  the  lot  will  have  to  be  taken  to 
pay  the  expenses  of  the  improvement  or,  it  seems,  it  may 
follow  the  front-foot  plan  even  to  the  extent  of  taking  all 
the  lots  fronting  upon  the  proposed  improvement. 

A  district  assessment  is  void  unless  every  lot  within  the 
district,  liable  to  assessment,  is  included.  [People  v.  Lynch, 
51  Cal.  19;  Diggins  v.  Brown,  76  Cal.  318;  Davies  v.  Los 
Angeles,  86  Cal.  37;  Moulton  v.  Parks,  64  Cal.  181;  Dyer 
v.  Harrison,  63  Cal.  447.] 


SEWER   CONSTRUCTION  U& 

V.  'Seirer  Construction  and  District  Assessments.  It  has 
recently  been  held  by  Judge  Wade  of  the  Superior  Court  of 
Los  Angeles  county  in  the  case  of  White  v.  Harris,  on 
demurrer  to  complaint,  that  the  front-foot  plan  of  assess- 
ment cannot  be  adopted  when  the  work  to  be  done  is  sewer 
construction,  but  that  the  mode  of  payment  for  sewer  con- 
struction is  that  prescribed  by  section  27  of  the  act,  and 
must  be  either  by  district  assessment  or  out  of  the  street 
contingent  fund.  In  this  connection  the  learned  judge  says: 

"Defendant  claims  that  the  mode  of  payment  for  sewer 
construction  is  that  prescribed  by  section  27,  and  must  be 
either  by  district  assessment  or  out  of  the  street  contingent 
fund,  while  plaintiff  contends  that  the  council  may  resort 
to  either  of  these  methods  or  to  that  prescribed  by  section 
7,  subdivision  1.  Assessment'in  proportion  to  the  frontage, 
at  a  rate  per  front  foot^  sufficient  to  cover  the  total  expense 
of  the  work.'  The  language  of  section  27  is  as  follows: 

"  'Whenever  the  city  council  deem  it  necessary  to  con- 
struct a  sewer,  then  the  said  council  may  in  its  discretion 
determine  to  construct  said  sewer  and  assess  the  cost  and 
expenses  thereof  upon  the  property  to  be  affected  or  bene- 
fited thereby,  in  such  manner  and  within  such  assessment 
district  as  it  shall  prescribe,  and  the  lien  therefor  upon  said 
property  shall  be  the  same  as  is  provided  in  section  nine 
of  this  act;  or  said  conncil  may  determine  to  construct 
said  sewer  and  pay  therefor  out  of  the  street  contingent 
fund/ 

"Plaintiff's  contention  hinges  upon  the  words  'in  its  dis- 
cretion.' If  this  section  stood  alone,  so  far  as  any  refer- 
ence to  sewers  is  concerned,  there  could  be  no  doubt 
whatever  that  the  discretionary  authority  of  the  council 
was  limited  to  the  two  methods  of  payment  therein  men- 
tioned. There  are,  however,  several  other  references  to 
sewers.  Section  two  mentions  sewers,  and  they  are  not 
expressly  excepted  from  the  provisions  of  section  seven,  as 
to  assessments  by  frontage.  The  exceptions  are  (./.)  of 
repairs,  etc.,  on  railroad  streets;  (2.)  work  done  and  assess- 
ments made  in  districts,  and  (3.)  street  crossings  and  street 
junctions,  set  out  in  section  seven,  subdivisions  two  to 
seven,  inclusive.  It  does  not  seem  reasonable  that  the 
mention  of  street  work  at  crossings,  or  where  one  street 
terminates  in  another  street,  'main'  streets  and  'small  or 
subdivision'  streets  (whatever  those  terms  may  mean)  were 
intended  to  have  reference  to  the  making  of  sewers.  But 
mention  is  also  made  of  assessment  by  districts,  in  several 
other  places  than  in  section  twenty-seven.  It  is  a  method 
of  payment  not  strictly  confined  to  sewer  construction. 


36     STREET  WORK  LAW — STREET  IMPROVEMENT  ACT 

And  yet  it  is  peculiarly  adapted  to  this  sort  of  work.  Assess- 
ment by  frontage  would  seem  to  be  notably  inapt  for  the 
purpose  of  paying  the  expense  of  constructing  a  sewer. 
The  rule  would  seem  to  be  almost  universal  that  one  would 
have  ingress  and  egress  to  and  from  his  lot  by  moans  of 
the  street  in  front  thereof.  The  rule  is  not  nearly  so  uni- 
form that  one  would  discharge  his  sewage  tli rough  a  con- 
duit laid  on  the  street  upon  which  he  fronted.  The 
topography  of  the  ground  and  many  other  circumstances 
might  include  a  particular  lot  in  an  assessment  district  for 
a  sewer  laid  upon  another  street,  for  the  reason  that  the  lot 
'would  be  benefited  thereby.'  The  probabilities  of  such 
being  the  case  were  fully  discussed  when  the  demurrer  in 
this  case  was  argued.  Taking  all  the  different  sections  o.f 
this  difficult  statute  into  consideration,  it  seems  that  the 
correct  interpretation  of  section  twenty-seven  is  that  the 
discretion  with  which  the  council  is  there  clothed  is  to 
choose  which  of  the  two  methods  of  securing  payment 
therein  mentioned  it  will  adopt.  Had  it  been  intended  to 
include  the  method  of  assessment  by  frontage,  it  would 
have  been  so  easy  for  the  legislature  to  have  so  expressed 
itself,  while  the  subject  of  sewers  was  before  it  as  the  chief 
subject  of  consideration,  that  the  omission  seems  signifi- 
cant. The  assessment  in  this  case  was  clearly  not  made 
by  districts  nor  was  there  any  district  established  so  far  as 
the  pleadings  show." 

The  learned  judge  says  in  effect  that  if  it  had  been  the 
intention  of  the  legislature  to  include  assessments  for  sewer 
construction  in  the  method  of  assessing  by  frontage,  the 
legislature  would  have  so  expressed  itself  while  treating  of 
the  subject  of  sewers  in  part  II  of  the  act.  But  the  act  does 
provide  as  follows:  "The  expenses  incurred  to?  any  work 
authorized  by  this  act  *  *  [Sec.  2  of  the  act  specifies 
the  work  which  the  act  authorizes  to  be  done,  and  includes 
sewer  construction]  shall  be  assessed  upon  the  lots  and 
lands  fronting  thereon,  except  as  hereinafter  specifically  pro- 
vided] each  lot  or  portion  of  a  lot  being  separately  assessed, 
in  proportion  to  the  frontage,  at  a  rate  per  front  foot  suffi- 
cient to  cover  the  total  expense  of  the  work."  [Section  7, 
subdivision  1.]  And  section  three  of  the  act  expressly 
recognizes  the  application  to  sewer  work  of  the  front  foot 
method  of  assessment.  Section  three  provides  that  "when 
the  work  or  improvement  proposed  to  be  done  is  the  con- 
truction  of  sewers,  man-holes,  culverts,  or  cesspools,  cross- 
walks or  sidewalks,  and  curbs,  and  the  objection  thereto  is 
signed  by  the  owners  of  a  majority  of  the  frontage  liable  to 
be  assessed  for  the  expense  of  said  work,  as  aforesaid,  the 


SECTION  FOUR  OP  THE  ACT      f^/gfffif^        37 

sai<l  city  council  shall,  at    its  next    meeting,  fix  a  time  for 
hearing  said  objections,"  etc. 

The  last  sentence  of  subdivision  8  of  section  7  likewise 
recognizes  the  applicability  of  the  front-foot  method  of 
assessment  to  work  of  this  kind.  It  provides  that  "  when 
sewering  or  resawering  is  ordered  to  be  done  under  the 
sidewalk  on  only  one  side  of  a  street  for  any  length  thereof, 
the  assessment  for  its  expenses  shall  be  made  only  upon  the 
lots  and  lands  fronting  nearest  upon  that  side,"  etc. 

Part  II  of  the  act,  which  includes  section  27,  was  inserted 
in  the  act  as  it  was  originally  passed,  i.  e.,  before  the 
adoption  or  passage  of  any  subsequent  amendatory  acts.  At 
that  time,  section  3  of  the  act  did  not,  as  it  d  >33  no.v,  give 
the  council  authority  to  adopt  the  district  assessment  plan, 
whenever,  in  its  opinion,  the  contemplated  work  or 
improvement  is  of  more  than  local  or  ordinary  public  bene- 
fit, and  therefore  section  27  was  necessary  as  a  specially 
enabling  provision  to  enable  the  council  to  adopt  the  dis- 
trict assessment  plan  whenever  a  sewer  was  to  be  con- 
structed. And,  as  sewer  construction  is  very  often  a  work 
or  improvement  of  more  than  local  or  ordinary  public 
benefit,  it  follows  that  some  such  specially  enabling  provis- 
ion was  wise  and  just.  See  notes  to  section  27  of  the  act 
for  a  further  consideration  of  this  subject. 

Section  4.  The  owners  of  a  majority  in  frontage  of  lots  and  lands  front- 
in-  on  any  street,  avenue,  lane,  alley,  place  or  court,  or  of  lots  or  lands  lia- 
ble to  be  assessed  for  the  expense  of  the  work  petitioned  to  be  done,  or 
their  duly  authori/i'd  agents,  may  petition  the  city  council  to  order  any  of 
the  work  mentioned  in  this  act  to  be  done,  and  the  city  council  may  order 
the  \v  >rk  mentioned  in  said  petition  to  be  done,  after  notice  of  its  intention 
s.i  to  <lo  has  been  posted  and  published  as  provided  in  section  3  of  this  act  • 
[Amendment  approved  March  31,  1891,  statutes  1891,  page  199.] 

ion  4  was  amended  in  1889  by  act  of  March  14,  1889,  statutes  '89,  p- 
160;  and  again  in  1891  by  act  of  March  31,  1891,  statutes  '91,  p.  199.] 

Except  where  the  work  to  be  done  is  the  grading 
of  a  street,  avenue,  lane,  etc.,  to  a  new  grade — the  old 
grade  having  been  changed  since  the  amendment  of 
March  11,  1S93,  to  section  2  of  the  act — the  council  may, 
under  section  3  of  the  act,  on  its  own  motion,  or  on  petition 
of  less  than  a  majority  of  the  frontage,  inaugurate  proceed- 
ings to  do  any  of  the  work  which  the  act  authorizes  to  be 
done — the  council  in  that  case  taking  the  chances  of  the 
proceedings  being  barred  for  six  months  by  the  filing  of 
"  written  objections"  signed  by  a  majority  of"  the  frontage, 
as  provided  for  by  section  3.  By  section  4  it  is 
provided  that  the  owners  of  a  majority  of  the  frontage, 
or  their  duly  authorized  agents,  may  inaugurate  the  pro- 


38      STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

ceedings  by  filing  a  petition  petitioning  the  council  to  order 
to  be  done  any  of  the  work  mentioned  in  the  act,  in  which 
case  the  council,  if  it  deems  it  proper  to  do  so,  may  order 
the  work  mentioned  in  such  petition  to  be  done.  In  either 
case  the  object  of  the  law  is  to  make  the  wishes  of  the  own- 
ers of  a  majorit}7  of  the  frontage,  as  to  certain  classes  of 
work,  controlling  in  the  matter.  If  the  proceedings  are  begun 
under  section  3  of  the  act,  the  owners  of  a  majority  of  the 
frontage  may,  as  to  certain  classes  of  work,  stop  all  proceed- 
ings by  filing  written  objections.  If  the  proceedings  are 
begun  under  section  4  of  the  act,  i.  e.,  inaugurated  by  a  peti- 
tion signed  by  a  majority  of  the  frontage,  the  will  of  the 
majority  thus  expressed  is  controlling  upon  the  minority  if 
the  council  sees  fit  to  order  the  work  to  be  done.  But  the 
law  aims  to  collect  the  wishes  of  the  majority  once  and  only 
once.  Whenever  a  majority  appears  either  way,  there  is  no 
need  to  collect  further  the  votes  of  the  owners.  Therefore, 
section  3  provides  for  written  objections  when  there  has 
been  no  sufficient  petition,  and  section  4  provides  for  such 
a  petition  without  providing  for  any  objections  to  be  filed. 
If  such  objections  are  filed  they  are  of  no  avail,  and  cannot 
bar  the  work.  If,  after  filing  the  petition  provided  for  by 
section  4,  some  of  the  owners  change  their  minds,  this  will 
not  avail  to  stop  the  proceedings. 

Judge  Shaw,  of  the  Superior  Court  of  Los  Angeles  county, 
in  an  opinion  delivered  in  the  case  of  Charnock  v.  City  of 
Los  Angeles,  passing  upon  a  motion  for  an  injunction,  com- 
pares these  provisions  of  sections  3  and  4  of  the  act,  and,  in 
this  connection,  says:  "The  proceedings  were  instituted 
under  what  is  known  as  the  Vrooman  act,  which  provides 
[here  section  4  is  quoted  in  full.]  In  this  proceeding  the 
initiatory  step  was  a  petition  to  the  council  signed  by  a 
majority  of  the  owners.  Afterwards,  and  within  the  time 
limited  after  the  passage  of  the  resolution  of  intention,  a 
protest,  also  signed  by  the  owners  of  a  majority  of  the  front- 
age, was  duly  delivered  to  the  clerk  of  the  council.  This 
was  signed  by  some  of  the  persons  who  had  previously 
signed  the  petition,  and  without  their  names  would  not 
have  had  a  majority  of  the  frontage. 

"It  is  contended  by  the  defendant  that  the  provisions  of 
section  3  of  the  act  concerning  the  protest  of  a  major- 
ity of  the  frontage  against  the  work,  and  the  conse- 
quent stay  of  proceedings  for  six  months,  have  no  applica- 
tion to  a  proceeding  begun  by  petition  under  section  4. 

"I  am  of  the  opinion  that  this  is  the  correct  interpretation 
of  the  act. 


EFFECT  OF  PETITION  UNDER  SECTION  FOUR    Mn 

"Section  1  of  the  act  invests  the  city  council  with  juris- 
diction to  order  to  be  done  on  the  streets  any  of  the  work 
mentioned  in  section  3  under  the  proceedings  thereinafter 
prescribed. 

"Section  2  gives  the  council  power,  of  their  own  motion 
and  without  request  or  petition  from  any  person,  to  begin 
the  proceedings  whenever  in  their  opinion  the  public  inter- 
est or  convenience  may  require  the  work. 

"Section  3  outlines  the  method  of  procedure  in  detail. 
It  provides  that  they  shall  first  pass  a  resolution 
of  intention  to  do  the  work  and  describe  the  work 
therein.  Then  certain  notices  are  to  be  given  by  the 
street  superintendent.  At  this  stage  of  the  case  an 
objection  in  writing  by  the  owners  of  one-half  or  more  of 
the  frontage  stops  the  proceedings  for  six  months  unless 
within  that  time  the  owners  of  one-half  or  more  of  the 
frontage  shall  petition  for  the  same  to  be  done.  Each  of 
these  may  be  by  one-half  only,  which  is  not  a  majority. 
This  objection  is  the  only  means  by  which  the  owners  of 
the  property  can  interfere  with  the  proceedings  when  they 
are  instituted  by  the  council  of  its  own  motion.  It  seems 
to  me  that  the  provision  was  inserted  for  the  -sole  purpose 
of  giving  the  owners  of  the  frontage  the  power  to  check 
the  council  to  the  extent  of  a  six  months'  stay.  Without 
this  they  would  be  entirely  powerless  and  the  council  would 
have  full  control.  There  was,  therefore,  a  good  reason  for 
inserting  this  provision  and  making  it  apply  to  a  proceed- 
ing begun  by  the  council  without  petition.  But  there  is  no 
good  reason  for  making  this  provision  apply  to  a  case  begun 
)ijx>n  the  voluntary  petition  of  the  owners  of  a  majority  of  the 
frontage  asking  for  the  doing  of  the  very  work  in  question. 

"It  would  appear  silly  to  allow  the  owners  to  stop  work 
which  is  ordered  upon  their  own  petition.  Such  a  con- 
struction of  the  act  ought  not  to  be  made  unless  the  lan- 
guage clearly  requires  it  either  expressly  or  by  implication. 
This  it  does  not  do. 

"Section  4  prescribes  the  method  of  proceeding 
when  the  work  is  ordered  on  the  petition  of  the  own- 
ers. In  the  first  place  it  requires  the  petition  of  more 
than  one-half  the  frontage.  It  implies  that  the  petition  must 
describe  the  work  desired  to  be  done,  and  the  council  have  no 
authority  under  this  section  to  order  any  other  work  done. 
The  language  is:  'The  city  council  may  order  the  work 
mentioned  in  said  petition  to  be  done.'  Therefore  this 
section  gives  no  authority  for  other  work.  In  my  opinion 
it  calls  for  the  application  of  the  rule:  'Expressio  unius  est 
exclusio  alterious.'  It  declares  that  the  council  may  order 


40     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

the  work  to  be  done  "after  notice  of  its  intention  so  to  do 
has  been  posted  as  required  in  section  3  of  this  act.'  This 
is  the  only  reference  to  section  3  and  it  is  the  only  prerequisite  to 
the  ordering  of  the  ivork.  It  follows  from  the  application  of 
the  rule  that  the  other  restrictions  of  section  3  do  not  apply. 

"Again,  it  must  be  admitted  that  the  legislature  in  enact- 
ing section  4  had  some  object  in  view. 

"If,  however,  the  theory  of  the  plaintiff  is  correct,  and 
after  the  petition  under  section  4  is  filed,  all  the  proceed- 
ings mentioned  in  section  3  are  necessary  or  allowable, 
then  there  is  no  use  for  section  4.  It  would  be  without 
any  force  whatever.  For  the  owners  have  the  right  of 
petition  without  section  4.  Now,  if,  under  section  4,  the 
council  must  pass  a  resolution  of  intention,  which  they 
could  do  without  the  petition,  then  of  what  use  is  the  peti- 
tion? And  the  council  might  refuse  to  pass  the  resolution. 
If  it  did  refuse,  the  petitioners  could  not  force  its  passage. 

ult  is  my  opinion  that  the  petition  mentioned  in  section  4  is 
intended  to  take  the  place  of  the  resolution  of  intention  required 
by  section  3,  and  that  when  the  proceeding  is  begun  by  the 
proper  petition  no  resolution  of  intention  is  necessary,  but  the 
notice  of  intention  must  be  the  intention  to  do  the  ivork  men- 
tioned in  the  petition,  and  the  provisions  of  section  3  as  to 
stay  of  proceedings  or  objections  in  writing  do  not  apply  to 
proceedings  by  petition  under  section  4- 

"This,  however,  leads  to  another  consideration  which  is 
fatal  to  the  proceedings.  When  the  proceeding  is  by  peti- 
tion the  work  ordered  to  be  done  must  correspond  in  all 
respects  to  the  work  described  in  the  petition.  The  council 
in  such  a  proceeding  can  order  to  be  done  only  'the  work 
mentioned  in  said  petition.'  [Sec.  4.]" 

The  foregoing  opinion  of  Judge  Shaw  shows  clearly  the 
relation  of  sections  3  and  4  of  the  Vrooman  act  to  each 
other  and  to  the  question  of  jurisdiction  by  the  council  to 
order  the  work  to  be  done — a  question  to  which  these  sec- 
tions (3  and  4)  are  mutually  related.  The  opinion  also 
clearly  shows  the  mode  which,  in  the  opinion  of  the  learned 
judge,  is  provided  for  by  each  of  said  sections  for  the  attain- 
ment of  such  jurisdiction,  in  the  cases  to  which  said  sec- 
tions respectively  relate. 

The  judge  is  doubtless  correct  in  his  conclusion  that 
where  the  proceeding  is  inaugurated  under  the  provision 
of  section  4  of  the  act,  by  the  filing  of  a  petition,  it  can 
not  be  barred  by  the  filing  of  written  objections  as  pro- 
vided for  by  section  3  of  the  act,  even  if  some  of  the  owners 
have  meanwhile  changed  their  minds  so  that  a  majority  of 
the  frontage  appears  on  the  written  objections.  But  the 


EFFECT  OF  PETITION  UNDER  SECTION  FOUR    8£.*n?"J5Pa:  41 

opinion  also  declares  "the  petition  mentioned  in  section  4 
is  intended  to  take  the  place  of  the  resolution  of  intention 
required  by  section  3,  and  when  the  proceeding  is  begun 
by  the  proper  petition  no  resolution  of  intention  is  neces- 
sary, but  the  notice  of  intention  must  be  the  intention  to 
do  the  work  mentioned  in  the  petition."  In  so  far  as  the 
opinion  holds  that  the  petition  takes  the  place  of  a  resolu- 
tion of  intention,  the  learned  judge  seems  to  be  in  error. 
The  mere  filing  of  a  petition  signed  by  the  owners  of  a 
majority  of  the  frontage,  while  it  might  be  sufficient  to  cut 
off  all  possibility  of  barring  the  proceedings  by  written 
objections  filed  thereafter,  is  not  sufficient  as  notice  to  the 
possible  minority  who  have  not  signed  the  petition.  Every 
owner  whose  property  is  liable  to  be  assessed  is  entitled  to 
notice  of  some  kind,  and  if  the  act  does  not  contain  provi- 
sions for  such  notice  it  is  unconstitutional,  or  if  notice  is 
not  given  to  the  lot  owners  in  some  proper  manner  his 
constitutional  rights  are  violated  and  the  proceedings  are 
void.  [Lent  r.  Tillson,  72  Cal.  404;  Boorman  v.  Santa  Bar- 
bara, 65  Cal.  313.]  Judge  Shaw's  opinion  seems  to  contem- 
plate some  sort  of  notice.  But  if  the  act  has  provided  what 
kind  of  notice  shall  be  given,  when  the  proceedings  are 
inaugurated  under  section  4  by  the  filing  of  a  petition — 
and  if  the  notice  thus  provided  for  by  the  act  includes  the 
passage  of  a  resolution  of  intention — then  a  resolution  of 
intention  to  order  to  be  done  the  work  mentioned  in  the 
petition,  must  be  filed,  notwithstanding  the  filing  of  the 
petition.  The  act  provides  [Sec.  4]  that  upon  filing  the 
petition,  the  council  "may  ordbr  the  work  mentioned  in 
said  petition  to  be  done,  after  notice  of  its  intention  so  to 
do  has  been  posted  and  published  as  provided  in  section  3 
of  this  act."  Section  3  of  the  act  provides  that  notice  of 
the  council's  intention  to  order  the  work  to  be  done  shall 
be  given  by  two  postings  and  two  publications,  viz.: 
1.  By  posting  the  resolution  of  intention,  and  by  posting 
notices  of  the  passage  of  the  resolution  of  intention,  (which 
notices  of  passage  of  the  resolution,  after  stating  the  fact  of 
the  passage  of  the  resolution,  and  the  work  proposed,  must 
"refer  to  the  resolution  for  further  particulars;")  2.  By  pub- 
lishing the  resolution  of  intention  and  by  publishing  said 
notices  of  the  passage  of  the  resolution.  So  that,  in  order 
to  post  and  publish  notice  of  its  intention  to  order  to  be 
done  the  work  mentioned  in  the  petition,  in  the  manner 
provided  by  section  3  of  the  act,  the  council  must  pass  a 
resolution  of  intention  to  order  said  work  to  be  done. 

The    words   "notice   of  its  [the   council's]  intention  so  to 
do"  have  in   all  the   acts,  when   used,  meant  ''notice  of  its 


V 


42  STREET  WORK  LA.W STREET   IMPROVEMENT   ACT 

intention  so  to  do,  in  the  form  of  a  resolution,  describing 
the  work,  and  published  or  posted  for  a  certain  time." 
Thus  the  act  of  1862,  amending  San  Francisco's  consolida- 
tion.act,  provided  that  "the  board  of  supervisors  may  order 
any  work  *  *  *  to  be  done,  after  notice  of  their  inten- 
tion so  to  do,  in  the  form  of  a  resolution,  describing  the 
work,  *  *  *  has  been  published  for  a  period  of  ten 
days."  [Statutes  1862  p.  392.]  So  that  it  would  seem  from 
the  meaning  heretofore  placed  upon  the  phrase,  "notice  of 
its  intention/'  as  well. as  the  context  in  which  it  appears  in 
section  4  of  the  act,  that  the  true  meaning  of  this  section 
(section  4)  is  that  "the  council  may  order  the  work  men- 
tioned in  said  petition  to  be  done,  after  notice  of  its  inten- 
tion so  to  do,  (in  the  form  of  a  resolution)  has  been  posted 
and  published  as  provided  in  section  3  of  this  act." 

SECTION  5.  Before  the  awarding  of  any  contract  by  the  city  council  for 
doing  any  work  authorized  by  this  act,  the  city  council  shall  cause  notice, 
with  specifications,  to  be  posted  conspicuously  for  five  days  on  or  near  the 
council  chamber  door  of  said  council,  inviting  sealed  proposals  or  bids  for 
doing  the  work  ordered,  and  shall  also  cause  notice,  of  said  work  inviting 
said  proposals,  and  referring  to  the  specifications  posted  or  on  file,  to  be 
published  for  two  days  in  a  daily,  semi-weekly  ,or  weekly  newspaper  pub- 
lished and  circulated  in  said  city,  designated  by  the  council  for  that 
purpose,  and  in  case  there  is  no  newspaper  published  in  said  city,  then  it 
shall  only  be  posted  as  hereinbefore  provided.  All  proposals  or  bids 
offered  shall  be  accompanied  by  a  check  payable  to  the  order  of  the  mayor  of 
the  city,  certified  by  a  responsible  bank,  for  an  amount  which  shall  not  be 
less  than  ten  per  cent,  of  the  aggregate  of  the  proposal,  or  by  a  bond  for  the 
said  amount  and  so  payable,  signed  by  the  bidder  and  by  two  sureties, 
who  shall  justify,  before  any  officer  competent  to  administer  an  oath,  in 
double  the  said  amount,  and  over  and  above  all  statutory  exemptions. 
Said  proposals  or  bids  shall  be  delivered  to  the  clerk  of  the  said  city 
council,  and  said  council  shall,  in  open  session,  examine  and  publicly 
declare  the  same ;  provided,  however,  that  no  proposal  or  bid  shall  be  con- 
sidered unless  accompanied  by  said  check  or  bond  satisfactory  to  the 
council.  The  city  council  may  reject  any  and  all  proposals  or  bids  should 
it  deem  this  for  the  public  good,  and  also  the  bid  of  any  party  who  has 
been  delinquent  and  unfaithful  in  any  former  contract  with  the  munici- 
pality, and  shall  reject  all  proposals  or  bids  other  than  the  lowest  regular 
pioposal  or  bid  of  any  responsible  bidder,  and  may  award  the  contract  for 
said  work  or  improvement  to  the  lowest  responsible  bidder  at  the  prices 
named  in  his  bid,  which  award  shall  be  approved  by  the  mayor,  or  a  three- 
fourths  vote  of  the  city  council.  If  not  approved  by  him,  or  a  three-fourths 
vote  of  the  city  council,  without  further  proceedings,  the  city  council  may 
readvertise  for  proposals  or  bids  for  the  performance  of  the  work  as  in  the 
first  instance,  and  thereafter  proceed  in  the  manner  in  this  section  pro- 
vided, and  shall  thereupon  return  to  the  proper  parties  the  respective 
checks  snd  bonds  corresponding  to  the  bid  so  rejected.  But  the  checks 
accompanying  such  accepted  proposals  or  bids  shall  be  held  by  the  city 


SECTION  FIVE  OF  THE  ACT  Mar.531,S189lfnded       43 

clerk  of  said  city  until  the  contract  for  doing  said  work,  as  hereinafter 
provided,  has  been  entered  into,  either  by  said  lowest  bidder  or  by  the 
owners  of  three-fourths  part  of  the  frontage,  whereupon  said  certified 
check  shall  be  returned  to  said  bidder.  But  if  said  bidder  fails,  neglects, 
or  refuses  to  enter  into  the  contract  to  perform  said  work  or  improvement, 
as  hereinafter  provided,  then  the  certified  check  accompanying  his  bid  and 
the  amount  therein  mentioned,  shall  be  declared  to  be  forfeited  to  said 
city,  and  shall  be  collected  by  it,  and  paid  into  its  fund  for  repairs  of 
streets;  and  any  bond  forfeited  may  be  prosecuted,  and  the  amount  due 
thereon  collected  and  paid  into  said  fund.  Notice  of  such  awards  of 
contract  shall  be  posted  for  five  days,  in  the  same  manner  as  hereinbefore 
provided  for  the  posting  of  proposals  for  said  work,  and  shall  be  published  for 
two  days  in  a  daily  newspaper  published  and  circulated  in  said  city,  and  des- 
ignated by  said  city  council,  or  in  cities  where  there  is  no  daily  newspaper, 
by  one  insertion  in  a  semi-weekly  or  weekly  newspaper  so  published,  cir- 
culated and  designated;  pmrided,  however,  that  in  case  there  is  no  news- 
paper printed  or  published  in  any  such  city,  then  such  notice  of  award 
shall  only  be  kept  posted  as  hereinbefore  provided.  The  owners  of  three- 
fourths  of  the  frontage  of  lots  and  lands  upon  the  street  whereon  said 
work  is  to  be  done,  or  their  agents,  and  who  shall  make  oath  that  they  are 
such  owners  or  agents,  shall  not  bxe  required  to  present  sealed  pro- 
posals or  bids,  but  may,  within  ten  days  after  the  first  posting  and  publi- 
cation of  said  notice  of  said  award,  elect  to  take  said  work  and  enter  into 
a  written  contract  to  do  the  whole  work  at  the  price  at  which  the  same 
has  been  awarded.  Should  the  said  owners  fail  to  elect  to  take  said 
work,  and  to  enter  into  a  written  contract  therefor  within  ten  days,  or  to 
commence  the  work  within  fifteen  days  after  the  first  posting  and  publication 
of  said  award,  and  to  prosecute  the  same  with  diligence  to  completion,  it 
shall  be  the  duty  of  the  superintendent  of  streets  to  enter  into  a  contract 
with  the  original  bidder  to  whom  the  contract  was  awarded,  and  at  the 
prices  specified  in  his  bid.  But  if  such  original  bidder  neglects,  fails  or 
refuses,  for  fifteen  days  after  the  first  posting  and  publication  of  the  notice 
of  award,  to  enter  into  the  contract,  then  the  city  council,  without  further 
proceedings,  shall  again  advertise  for  proposals  or  bids  as  in  the  first 
instance,  and  award  the  contract  for  the  said  work  to  the  then  lowest  regular 
bidder.  The  bids  of  all  persons  and  the  election  of  all  owners  as  aforesaid, 
who  have  failed  to  enter  into  the  contract  as  herein  provided,  shall  be 
rejected  in  any  bidding  or  election  subsequent  to  the  first  for  the  same 
work.  If  the  owner  or  contractor  who  may  have  taken  any  contract,  do 
not  complete  the  same  within  the  time  limited  in  the  contract,  or  within 
such  further  time  as  the  city  council  may  give  them,  the  superintendent 
of  streets  shall  report  such  delinquency  to  the  city  council,  which  may 
relet  the  unfinished  portion  of  said  work,  after  pursuing  the  formalities 
prescribed  hereinbefore  for  the  letting  of  the  whole  in  the  first  instance. 
All  contractors,  contracting  owners  included,  shall,  at  the  time  of  execut- 
ing any  contract  for  street  work,  execute  a  bond  to  the  satisfaction  and 
approval  of  the  superintendent  of  streets  of  said  city,  with*two  or  more 
sureties  and  payable  to  such  city,  in  such  sums  as  the  mayor  shall  deem 
adequate,  conditioned  for  the  faithful  performance  of  the  contract;  and 
the  sureties  shall  justify  before  any  person  competent  to  administer  an 
oath,  in  double  the  amount  mentioned  injsaidbond,  over  and  above  all 


44  STREET  WORK  LAW — STREET   IMPROVEMENT  ACT 

statutory  exemptions.  Before  being  entitled  to  a  contract,  the  bidder  ta 
whom  the  award  was  made,  or  the  owners  who  have  elected  to  take  the 
contract,  must  advance  to  the  superintendent  of  streets,  for  payment  by 
him,  the  cost  of  publication  of  the  notices,  resolutions,  orders,  or  other 
incidental  expenses  and  matters  required  under  the  proceedings  prescribed 
in  this  act,  and  such  other  notices  as  may  be  deemed  requisite  by  the  city 
council.  And  in  case  the  work  is  abandoned  by  the  city  before  the  letting 
of  the  contract,  the  incidental  expenses  incurred  previous  to  such  aban- 
donment shall  be  paid  out  of  the  city  treasury.  [Amendment  approved 
March  31,  1891,  statutes  1891,  page  199.} 

[Section  5  was  amended  in  1889,  by  act  of  March  14,  1889,  statutes  1889r 
p.  160,  and  again  in  1891  by  act  of  March  31,  1891,  statutes,  1891,  p.  199.J 

As  stated  in  the  notes  to  section  three,  there  are, 
oidinarily,  at  least  ten  things  essential  to  the  acqui- 
sition of  jurisdiction  or  power  to  execute  a  valid  con- 
tract under  which  the  property  of  the  lot  owner  will  be 
liable,  including  the  execution  of  the  contract  itself.  [Pages 
18-19,  supra.  \  Five  of  these  jurisdictional  prerequisites, 
viz:  (1.)  Passage  of  resolution  of  intention;  (2.)  post- 
ing and  publication  of  resolution;  (3.)  posting  and  publica- 
tion of  notices  of  passage  of  the  resolution;  (4-)  passage  of 
order  for  the  work  to  be  done,  and  (5.)  publication  of  order  for 
the  work  to  be  done  or  resolution  of  construction — are  con- 
sidered in  the  notes  under  section  3,  supra.  The  remain- 
ing five  jurisdictional  prerequisites  to  the  existenceof  a  valid 
contract  are  provided  for  by  section  5  of  the  act.  They 
are:  (1.)  Posting  and  publication  of  notices  inviting  sealed 
proposals;  (2.)  consideration  of  bids;  (3.)  award  of  contract; 
(4-)  posting  and  publication  of  notice  of  award  of  contracts, 
and  (5.)  execution  of  written  contract  by  superintendent  of 
streets. 

1.  Posting  and  Publication  of  Notices  Inviting  Sealed  Pro- 
posals. Notices  inviting  sealed  proposals  must  be  both 
posted  and  published. 

(a.)  Posting  Notices  Inviting  Proposals.  The  act  provides 
[Sec.  5]  that  notices  inviting  sealed  proposals  for  doing  the 
work  ordered  to  be  done  shall  be  posted  conspicuously  for 
five  days  on  or  near  the  council  chamber  door;  that  the  city 
council  shall  cause  such  notices  to  be  posted,  and  that  the 
" specifications"  shall  be  posted  along  with  such  posted 
notices.  The  section  provides  that  the  council  shall 
cause  tne  notices  to  be  posted.  From  which  it  would  seem 
that  the  posting  is  not  sufficient  unless  the  council  passes 
an  order  or  resolution  directing  the  notices  inviting  sealed 
proposals  to  be  posted  by  the  clerk  or  by  the  superintendent 
of  streets,  or  by  some  one  under  their  authority.  This 
direction  may  be  contained  in  a  separate  and  independent 
order  or  in  the  resolution  of  construction  or  order  for  the 


NOTICES  INVITING  SEALED  PROPOSALS      SfiAiffiB?^6*        45 

work  to  be  done.  Thus,  in  Shepard  v.  Colton,  44  Cal.  628, 
the  resolution  of  construction,  or  order  for  the  work  to  be 
done,  after  resolving  that  the  work  be  done,  contained  a 
provision,  as  follows:  "And  the  clerk  is  hereby  authorized 
to  advertise  for  proposals  to  do  the  above  work."  Held,  that 
the  resolution  directing  or  authorizing  the  clerk  to  "adver- 
tise" for  proposals  was  sufficient  authority  to  the  clerk  to 
advertise  for  proposals  in  the  mode  provided  by  law — that 
it  authorized  him  to  post  the  notice  as  well  as  to  publish  it. 
This  case  holds  that  the  use  of  the  word  "advertise"  was 
sufficient  authority  to  the  clerk  to  both  post  and  publish 
the  notice.  At  the  same  time  it  seems  to  be  assumed  that 
the  posting  or  publishing  by  the  clerk  would  not  be  sufficient 
unless  there  was  some  kind  of  order  or  direction  to  him 
from  the  council  to  do  so.  [See  also  opinion  of  Temple  J. 
in  Chambers  v.  Satterlee,  40  Cal.  521-522;  Hewes  v. 
Reis,  40  Cal.  255.] 

In  Meuser  v.  Risdon,  36  Cal.  239,  it  was  held  that  where 
the  contractor  fails  to  perform  the  work,  and  it  becomes 
necessary  to  relet  the  contract  the  same  course  must  be 
pursued  in  reletting  which  is  prescribed  in  the  first 
instance  after  the  order  to  do  the  work  is  made  and  pub- 
lished; that  in  the  first  instance  the  clerk  has  no  authority 
independent  of  an  order  of  the  board  therefor  to  give  the  notice 
inriting  sealed  proposals;  and,  therefore,  in  case  of  such 
reletting,  he  has  no  such  power  independent  of  such  order, 
and  if  there  be  no  such  order  the  second  contract  made 
after  such  attempted  reletting  is  void;  also  that  each  pro- 
ceeding to  improve  a  street  is  a  separate  and  independent 
proceeding  and  must  stand  or  fall  by  itself,  and  that,  there- 
fore, authority  cannot  be  conferred  upon  the  clerk  to  post 
notices  by  a  general  resolution  directing  him  in  all  cases 
where  the  contractors  fail  to  perform  to  re-advertise  for 
proposals.  [See  also  Donnelly  v.  Tillman,  47  Cal.  40;  Don- 
nelly v.  Marks,  47  Cal.  187.] 

The  posting  of  the  notice  inviting  sealed  proposals  in 
the  manner  required  by  the  law  is  one  of  the  necessary, 
indispensable  jurisdictional  prerequisites,  and  if  not  posted 
for  the  time  required  by  law,  the  con  tract  and  all  subsequent 
proceedings  are  void.  [Hewes  v.  Reis,  40  Cal.  255.] 

The  order  of  the  council  authorizing  the  clerk  to  adver- 
tise for  proposals  to  do  street  work  is  sufficient,  although  it 
does  not  mention  "sealed"  proposals,  nor  specify  the  time 
or  place  of  giving  notice.  [Himmelman  v.  Byrne,  41  Cal. 
500.] 

When  the  statute  directs  a  notice  to  be  posted  in  the 
office  of  any  official,  as,  for  example,  in  the  office  of  the 


46      STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

superintendent  of  streets,  for  a  certain  number  of  days, 
it  must  be  posted  in  such  office  and  kept  posted  for  each 
one  of  such  days  during  the  whole  time  during  which  the 
office  is  by  law  to  be  kept  open.  That  is,  in  such  case  the 
days  during  which  the  notice  is  to  be  posted  are  "official" 
days.  Thus,  in  Himmelmanii  v.  Cahn,  49  Gal.  285,  the  law 
required  the  notice  inviting  sealed  proposals  to  be  posted  in 
the  office  of  the  superintendent  of  streets  for  five  days,  and 
it  was  held  that  it  must  be  posted  before  the  commencement 
of  the  first  official  day,  that  is,  before  9  o'clock  A.  M., 
when  by  statute  the  office  was  to  be  opened,  and  remain 
posted  during  the  whole  of  the  first,  second,  third,  fourth 
and  until  4  o'clock  of  the  fifth  day,  at  which  hour  the 
statute  authorized  the  office  to  be  closed.  [Brooks  v.  Satter- 
lee,  49  Cal.  289.] 

If  a  resolution  to  "grade"  a  street  is  properly  passed, 
posted  and  published,  and  the  notice  inviting  sealed  pro- 
posals is  "for  grading"  the  street,  and  refers  to  the  reso- 
lution, it  will  not  vitiate  the  notice,  if,  as  explanatory,  it 
also  informs  bidders  that  the  street  is  to  be  "regraded." 
[Brady  v.  Feisel,  53  Cal.  49.] 

The  act  provides  that  "specifications"  must  be  posted 
along  with  the  posted  notice,  and  also  that  the  published 
notice  shall  refer  to  "the  specifications  posted  or  on  file." 
If  the  city  engineer  has  previously  prepared  specifications, 
but  has  done  so  without  authority  or  order  from  the  coun- 
cil directing  them  to  be  made,  the  subsequent  passage  of  a 
resolution  directing  the  clerk  to  post  and  publish  the  notices 
inviting  proposals,  to  be  done  "in  accordance  with  the  plans 
and  specifications  now  on  file  in  the  office  of  the  city  clerk," 
is  tantamount  to  a  prior  direction  to  the  city  engineer  to 
make  the  specifications,  and  will  be  sufficient.  [Stockton  v. 
Skinner,  53  Cal.  85.]  ' 

(b.)  Publishing  Notices  Inviting  Proposals.  The  act  pro- 
vides [Sec.  5]  not  only  for  posting  the  notice  inviting 
sealed  proposals,  but  that  the  council  "shall  also  cause 
notice  of  said  work,  inviting  said  proposals,  and  referring 
to  the  specifications  posted  or  on  file,  to  be  published  for 
two  days  in  a  daily,  semi-weekly  or  weekly  newspaper  pub- 
lished and  circulated  in  said  city,  designated  by  the  council 
for  that  purpose,  and  in  case  there  is  no  newspaper  pub- 
lished in  said  city,  then  it  shall  only  be  posted  as  hereinbe- 
fore provided." 

Many  of  the  notes  and  citations  relative  to  the  publica- 
tion of  the  resolution  of  intention,  of  notice  of  the  passage 
of  the  same,  publication  of  the  order  to  do  the  work,  and 
likewise  the  notes  and  citations  relative  to  posting  the 


PUBLISHING  NOTICES  INVITING  PROPOSALS    MarAl?l88l?nded         ^ 

notices  inviting  sealed  proposals,  are  applicable  here. 
For  example,  the  citations  relative  to  the  questions: — "What 
is  a  'daily'  newspaper?" — "Must  there  be  an  order  directing 
the  publication?"  etc.  And,  therefore,  these  notes  and 
citations  should  be  read  in  this  connection. 

If  the  published  notice  inviting  sealed  proposals  does 
not  refer  to  the  specifications  posted  or  on  file,  the  proceed- 
ings are  invalid.  [Stockton  v.  Clark,  53  Cal.  82.] 

The  act  requires  the  notices  inviting  proposals  to  per- 
form the  work  to  be  posted  for  five  days  and  published 
for  two  days.  Judge  Shaw  of  the  Superior  Court  of  Los 
Angeles  county  recently  held,  in  the  case  of  May  v .  Lyons, 
that  the  publication  and  the  posting  of  the  notices  must  be 
contemporaneous  in  point  of  commencement.  The  act 
provides  that  the  published  notice  shall  refer  to  the  specifi- 
cations on  file  or  to  the  copy  posted  along  with  the  posted 
notice,  and,  therefore,  when  the  notice  is  published  there 
must  be  a  notice  posted  with  specifications,  to  which  the 
published  notice  may  refer.  The  opinion  of  the  learned 
judge  in  that  case  upon  this  point  is  in  substance  as 
follows: 

"One  objection  to  the  validity  of  the  lien  was  that  the 
publication  of  the  notice  calling  for  proposals  to  perform 
the  work  was  not  made  at  the  proper  time.  In  this  case 
the  notice,  with  specifications,  was  posted  on  the  19th  day 
of  August,  1889,  and  kept  standing  until  the  23rd  of  the 
same  month,  both  days  included,  and  the  notice  of  such 
posting  was  published  on  the  24th  and  25th  of  August. 
The  defendant  insisted  that  the  notice  of  posting  should  be 
contemporaneous  with  the  posting  itself,  while  the  plaintiff 
contended  that  the  notice  must  be  of  a  posting  that  is  com- 
plete, and  that,  therefore,  the  publication  of  the  notice 
must  not  begin  until  after  the  specifications  have  been 
posted  five  days. 

"The  object  of  the  proceedings  required  by  the  statute 
was  evidently  to  publish  as  widely  as  possible  the  fact  that 
bids  for  the  proposed  work  were  to  be  received,  and  that 
the  specifications  could  be  seen  on  file  and  also  posted  at 
the  council  chamber  door.  The  specifications  were  to  be 
posted  so  as  to  make  them  easy  of  access,  and  at  the  same 
time  the  original  copy  was  to  be  seen  on  file.  It  was  a  nec- 
.essary  implication  that  there  were  to  be  two  copies.  It  was 
intended  that  those  who  read  the  published  notice  might 
have  time  afterward  to  consult  the  specifications  on  file  or 
those  posted,  as  might  be  most  convenient.  It  followed 
that  a  publication  of  the  notice  after  the  posting  was  com- 
pleted and  the  specifications  removed  was  not  a  compliance 


48      STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

with  the  statute.  In  a  case  construing  a  statute  similar  to 
this  it  had  been  held  that  any  failure  to  make  the  publica- 
tion as  required  rendered  all  subsequent  proceedings  void, 
including  the  assessment.  It  follows,  therefore,  that  the 
assessment  which  the  plaintiff  sought  to  foreclose  was  void." 

#.  Consideration  by  Council  of  Proposals  or  Bids.  The 
seventh  jurisdictional  prerequisite,  according  to  the  division 
adopted  in  the  notes  to  section  3  [page  18  supra],  is  the  con- 
sideration by  the  council  of  the  proposals  or  bids  put  in  by 
the  bidders  in  response  to  the  posted  and  published  notices 
inviting  proposals. 

All  proposals  or  bids  must  be  accompanied  by  a  certified 
check  for  not  less  than  ten  per  cent,  of  the  aggregate  of  the 
proposal,  or  by  a  bond  therefor.  After  all  the  proposals  or 
bids  are  delivered  to  the  clerk  within  the  time  provided  by 
the  notices  inviting  the  same,  the  council,  in  open  session, 
examines  and  publicly  declares  the  same.  The  council  may 
reject  any  and  all  bids,  and  advertise  for  bids  over  again, 
and  must  reject  all  but  the  lowest  regular  proposal  or  bid  of 
any  responsible  bidder.  If  it  is  satisfied  to  accept  the 
lowest  regular  responsible  bid,  it  may  thereupon  award  the 
contract  to  such  lowest  responsible  bidder  at  the  prices 
named  in  his  bid,  returning  to  the  other  bidders  their 
checks  or  bonds  as  provided  by  the  act. 

3.  Award  of  Contract.     The  eighth  jurisdictional  prere- 
quisite is  the  awarding  of  the  contract.     The  council   must 
award  the  contract  for  the  proposed  work  or   improvement 
to  the  lowest  regular  and    responsible    bidder  at  the  prices 
named  in  his  bid.    This  it  may  do  by  an  order  or  resolution 
to  that  effect.     See  Dougherty  v.  Hitchcock,  35  Cal.  517,  for 
form  of  a  "resolution  of   award."     The  resolution,  order  or 
ordinance  of  award  is  the  authority  of    the  superintendent 
of  streets  to  enter  into  and  execute  the  contract.  [Dougherty 
v.  Hitchcock,  supra.  ]  The  award,  if  made  by  less  than  a  three- 
fourths   vote    of   the    city    council — as,   if   made  by  a  bare 
majority  of  a  quorum,  for  example — must  be  approved   by 
the  mayor,  if    made  by   a  three-fourths   vote  of    the    whole 
council,  it  need  not  receive  the  mayor's  approval.    [McDon- 
ald v.  Dodge,  97  Cal.  112.] 

4.  Posting  and  Publishing  Notice  of  Award.     The  ninth 
jurisdictional    prerequisite  to  the. existence  of    a  valid  con- 
tract is  the  posting  and  publishing  of  a  notice  that  the  con- 
tract has  been   awarded.     Notice  of    the   award  of   the  con- 
tract must  be  posted  for  five   days   and    published    for  two 
days. 

(a.)  Posting  Notice  of  Award.  Notice  of  the  award  of 
the  contract  to  the  lowest  regular  and  responsible  bidder 


PUBLISHING  NOTICE  OF  AWAED       Er.ffS^  49 

must  be  posted  for  five  days  in  the  same  manner  as  notices 
inviting  proposals  are  directed  to  be  posted,  viz.,  conspicu- 
ously for  five  days  on  or  near  the  council  chamber  door  of 
the  city  council. 

(b.)  Publishing  Notice  of  Award.  Notice  of  award  must 
likewise  be  published  for  two  days  in  a  daily  newspaper 
published  and  circulated  in  said  city  and  designated  by  the 
city  council,  or  in  cities  where  there  is  no  daily  newspaper, 
by  one  insertion  in  a  semi-weekly  or  weekly  newspaper  so 
published,  circulated  and  designated.  If  there  is  no  such 
daily,  semi-weekly  or  weekly  newspaper,  then  the  notice 
need  not  be  published,  but  must  be  posted  and  kept  posted 
as  above  provided. 

The  council  must  pass  a  resolution  or  order  directing 
notice  of  the  resolution  of  award  to  be  posted  and  published, 
or  else  all  proceedings,  subsequent  to  the  resolution  of 
award,  will  be  void. 

In  Donnelly  v.  Tillman,  47  Cal.  40,  the  court  held  that 
the  board  of  supervisors  of  the  city  and  county  of  San  Fran- 
cisco must  make  an  order  that  the  notice  of  the  award  of 
the  contract  for  improving  a  street  be  published.  A  publica- 
tion of  the  notice  without  such  order  is  void.  The  court  iu 
that  case  said:  "The  plaintiff  claims  that  this  duty  [publi- 
cation of  notice  of  award]  is  incumbent  on  the  superintend- 
ent of  streets,  and  the  defendant  claims  that  it  devolves  on 
the  board  of  supervisors.  The  power  to  improve  the  streets 
is  granted  to  the  board,  and  authority  is  given  to  it  to  insti- 
tute and  conduct  the  proceedings  in  the  cases  where  the 
law  requires  a  contract  for  the  doing  of  the  work.  The 
board  makes  all  orders  up  to  and  including  the  award  of 
the  contract  to  the  successful  bidder,  and  in  most  respects 
it  has  control  or  supervision  of  all  subsequent  proceedings. 
The  statute  declares  that  at  a  certain  stage  in  the  proceed- 
ings the  board  shall  be  deemed  to  have  acquired  jurisdic- 
tion to  order  the  proposed  work  to  be  done.  These  provisions 
lead  to  the  conclusion  that  it  is  the  intention  of  the  statute 
that  the  board  should  have  all  authority  in  respect  to  the 
improvement  of  streets,  which  is  granted  by  the  statute,  but 
which  is  not  conferred  expressly  or  by  necessary  implication 
upon  some  of  the  officers  mentioned  in  the  statute,  and  not 
as  contended  by  plaintiff,  that  the  statute  grants  such  resid- 
uary authority  to  the  superintendent  of  streets."  [See  also 
Donnelly  v.  Marks,  47  Cal.  187;  Shepard  v.  Colton,  44  Cal. 
628;  Himmelmann  r.  Town  send,  49  Cal.  150;  Himmelmann 
v.  Satterlee,  49  Cal.  387;  Reis  v.  Graff,  51  Cal.  86.] 

5.    Execution  of  the  Contract  by  the  Superintendent  of  Streets. 
The  tenth  and  last  act  necessary  to  the  existence  of  a  valid 


50  STREET  WORK  LAW STREET   IMPROVEMENT   ACT< 

contract,  under  Which  the  contractor  may  proceed  to  do  the 
work,  is  th^  execution  of  the  formal  written  contract  by  the 
superintendent  of  streets. 

For  some  purposes,  and  in  some  respects,  the  contract  is 
complete  when  the  council  accepts  the  contractor's  bid  and 
awards  the  contract,  although  it  is  subject  to  the  right  of 
the  property  owners  to  come  in  and  elect  to  take  the  work 
and  enter  into  a  contract  therefor  themselves.  The  draw- 
ing up  of  a  formal  written  contract,  specific  in  its  terms, 
executed  by  the  superintendent  on  behalf  of  the  city,  is  a 
formal  reduction  to  writing  of  the  contract  made  by  the 
acceptance  of  the  contractor's  proposals.  In  Chambers  v. 
Satterlee,  40  Gal.  526,  Judge  Temple  said:  "The  agree- 
inent  is  complete  when  the  bid  is  accepted,  and  it  is  the 
contract  made  by  the  board  [council]  which  the  superin- 
tendent is  required  to  reduce  to  writing."  [See  also  Argen- 
tia  v.  San  Francisco,  16  Cal.  256,  280.]  Nevertheless,  in 
order  to  make  the  property  of  the  lot  owners  liable  under  an 
assessment  to  pay  for  the  work,  a  formal  written  contract 
duly  authorized  by  the  act,  and  executed  according  to  its 
requirements,  is  indispensable.  In  other  words,  the  agree- 
ment called  into  existence  by  the  acceptance  of  the  con- 
tractor's proposals,  or  bid,  must  be  formally  reduced  to 
writing  and  signed  by  the  superintendent  of  streets  before 
the  property  of  the  lot  owners  can  be  held  liable.  [Dough- 
erty v.  Hitchcock,  35  Cal.  512.] 

Under  the  act  the  owners  of  three-fourths  of  the  frontage 
have  ten  days  after  the  first  posting  and  publication  of  the 
notice  of  award,  within  which  to  elect  to  take  the  work 
themselves,  at  the  price  at  which  the  same  has  been 
awarded,  and  enter  into  a  written  contract  therefor.  If  the 
said  owners  fail  to  elect  to  take  said  work,  or,  if  after  entering 
into  a  contract  to  do  so,  they  fail  to  commence  the  work 
within  fifteen  days  after  the  first  posting  and  publishing  of 
notice  of  the  award,  and  to  prosecute  the  same  with  diligence, 
it  becomes  the  duty  of  the  superintendent  of  streets  to  enter 
into  and  execute  a  contract  with  the  original  bidder  to 
whom  the  contract  was  awarded  and  at  the  prices  specified 
in  his  bid. 

Section  6  of  the  act  (post)  specifically  authorizes  the 
superintendent  of  streets  to  make  all  written  contracts,  and 
provides  that  the  contract  shall  contain  certain  provisions, 
viz:  (1.)  The  contract  shall  fix  the  time  for  the  com- 
mencement of  the  work,  which  shall  not  be  less  than  fifteen 
days  from  the  date  of  the  contract,  and  for  the  completion. 
(2.)  A  proviso  to  the  effect  that  the  work  must  be  done 
under  the  direction  and  to  the  satisfaction  of  the  superin- 


EXECUTION  OF  THE  WRITTEN  CONTRACT       ?f_c:  ^?81S5?ended       51 


Mar.  31, 


tendent  of  streets.  (3.)  Likewise  that  the  materials  shall 
comply  with  the  specifications  and  be  to  the  satisfaction  of 
the  superintendent  of  streets,  arid  (4-)  Express  notice  that 
in  no  case,  except  where  it  is  otherwise  provided  by  said 
act,  will  the  city,  or  any  officer  thereof,  be  liable  for  any 
portion  of  the  expense  nor  for  any  delinquency  of  persons 
or  property  assessed. 

The  resolution  of  award,  or  order  awarding  the  con- 
tract, is  the  letter  of  authority  to  the  superintendent,  and 
the  contract  executed  by  him  must  be  such  as  is  author- 
ized by  the  resolution  of  award  and  no  other.  [Dough- 
erty v.  Hitchcock,  35  Cal.  512;  Brock  v.  Luning,  89  Cal. 
316.] 

The  act  [Section  5],  in  addition  to  the  execution  of  the 
formal  written  contract  by  the  superintendent  of  streets, 
provides  that  all  contractors,  including  contracting  owners, 
shall,  at  the  time  of  executing  any  contract  for  street  work, 
execute  a  bond  to  the  satisfaction  and  approval  of  the 
superintendent  of  streets,  conditioned  for  the  faithful  per- 
formance of  the  contract.  But  while  the  due  execution  of 
the  formal  written  contract  is  jurisdictional,  it  seems  that 
the  execution  of  such  accompanying  bond  is  not.  In  Miller 
r.  Mayo,  ss  Cal.  .'>(',*,  it  was  held  that  ua  failure  to  execute 
a  bond  that  should  be  satisfactory  to  the  superintendent  of 
streets  might  be  a  sufficient  reason  for  the  superintendent 
to  refuse  to  enter  into  the  contract  with  the  contractor 
but  after  the  work  has  been  completed  to  the  satisfaction 
of  the  superintendent  of  streets  the  property  owner  can 
not  object  to  the  correctness  of  the  assessment  by  reason  of 
the  omission  on  the  part  of  the  superintendent  to  approve 
the  bond  of  the  contractor." 

The  superintendent  has  no  power  or  jurisdiction  to  enter 
into  a  contract  at  any  time  prior  to  the  expiration  of  the 
time  within  which  the  property  owners  may  take  the  con- 
tract, i.  e.,  within  ten  days  after  the  first  posting  and  publi- 
cation of  the  notice  of  award,  and  if  the  superintendent 
does  execute  the  contract  within  that  time,  it,  and  all  pro- 
ceedings following,  are  void,  and  do  not  become  valid  by 
reason  of  a  failure  to  appeal.  [Burke  v.  Turney,  54  Cal. 
486;  Manning  v.  Den,  90  Cal.  610.]  Not  only  is  a  contract 
entered  into  prematurely,  i.  e.,  prior  to  the  expiration  of 
ten  days  after  the  first  posting  and  publishing  of  the  notice  of 
award,  void,  but  likewise,  a  contract  is  void  which  is  not 
entered  into  within  the  time  prescribed  by  the  statute, 
which,  according  to  the  express  provision  of  the  act,  is  fif- 
teen days  after  the  first  posting  and  publication  of  the 


52     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

notice  of  award,  and  a  failure  to  appeal  does  not  cure  the 
defect.  [Ferine  v.  Forbush,  97  Cal.  305.] 

The  successful  bidder  may  by  power  of  attorney,  author- 
ize another  person  to  enter  into  the  contract  with  the  super- 
intendent. [McVerry  v.  Boyd,  89  Cal.  304.] 

Contents  of  Contract.  The  contract  must  contain  a  pro- 
vision fixing  the  time  for  the  commencement  of  the  work, 
which  shall  not  be  less  than  fifteen  days  from  the  date  of 
the  contract,  and  also  for  its  completion.  [Section  6  of  the 
act.]  If  the  contract  does  not  contain  such  a  provision  it 
is  void.  [Libby  v.  Ellsworth,  97  Cal.  316;  Washburn  v. 
Lyons,  97  Cal.  314.]  The  same  result  would  follow  if  either 
of  the  other  three  things  required  by  section  6  of  the  act  were 
omitted  from  the  contract,  that  is  to  say,  the  contract  must, 
in  addition  to  a  provision  fixing  the  time  for  the  commence- 
ment of  the  work,  and  for  the  completion,  likewise  contain 
the  following  provisions,  viz.:  (1.)  A  provision  to  the  effect 
that  the  work  shall  be  done  under  the  direction  and  to  the 
satisfaction  of  the  superintendent  of  streets;  (2.)  that  the 
materials  used  shall  comply  with  the  specifications  and  be 
to  the  s  itisfaction  of  the  superintendent  of  streets,  and 
(3.)  that  in  no  case  except  where  it  is  otherwise  provided  by 
the  act,  will  the  city  or  any  officer  thereof,  be  liable  for  any 
portion  of  the  expense,  nor  for  any  delinquency  of  persons 
or  property  assessed.  If  the  contract  does  not  contain  these 
provisions,  it,  and  all  subsequent  proceedings,  are  void. 

If  specifications  made  by  the  superintendent  of  streets  are 
annexed  to  the  contract,  and  the  contract  refers  to  the  speci- 
fications so  as  to  make  them  a  part  thereof,  and  the  specifi- 
cations state  what  kind  of  material  shall  be  used — in  this 
case  "Goat  island  rock,"  for  macadamizing  purposes — this 
is  a  sufficient  compliance  with  the  requirement  that  the 
contract  shall  contain  a  provision  to  the.  effect  that  the 
materials  used  shall  "be  to  the  satisfaction  of  the  superin- 
tendent of  streets,"  etc.  [Emery  v.  S.  F.  Gas  Co.,  28  Cal.  346, 
347,  377 ;  Taylor  v.  Palmer,  31  Cal.  240.]  In  this  latter  case  the 
court  said:  "  It  is  next  claimed  that  the  contract  in  suit  *  * 
is  invalid,  because  it  does  not  contain  the  condition — made 
essential  by  the  statute — that  'the  materials  used  shall  be  such 
as  are  required  by  the  superintendent  of  streets.'  The 
objection  is  without  substantial  foundation.  The  contract 
may  not  follow  the  precise  language  of  the  statute.  It  is 
not  necessary  that  it  should.  If  it  can  be  held  to  contain 
the  condition  in  question  by  a  fair  and  reasonable  construc- 
tion, the  call  of  the  statute  is  fully  answered." 

If  the  council,  in  the  advertisement  for  proposals  or  bids, 
calls  for  a  patented  article  for  doing  the  street  work  in 


CONTENTS  OF  THE   WRITTEN  CONTRACT      M^f  i«$3nded        53 


question — as,  to  pave  a  street  with  NicolsDn  pavement,  for 
example — and  awards  a  contract  therefor  to  one  who  owned 
the  exclusive  right  to  put  down  such  pavement  in  the  city, 
the  award,  and  the  written  contract  made  in  pursuance 
thereof,  are  void.  The  reason  is  that  the  council  has  no 
power,  in  making  street  improvements,  to  do  any  kind  of 
work  which  for  any  reason  cannot  be  let  or  contracted  for 
in  the  mode  prescribed  in  the  statute,  or  which  the  owners 
of  the  frontage  are  legally  prohibited  from  performing.  In 
such  a  case  there  could  be  no  letting  to  the  "lowest  bidder/' 
since  there  could  be  but  one  bidder  who  would  enjoy  a 
monopoly.  All  persons,  other  than  the  owner  of  the  patent, 
would  be  precluded  from  bidding.  [Nicolson  Pavement  Co. 
v.  Painter,  35  Cal.  699;  Nicolson  Pavement  Co.  v.  Fay,  35 
Cal.  095.] 

Where,  however,  the  advertisement  for  proposals,  the 
award  and  the  contract,  are  all  silent  as  to  the  use  of  pat- 
ented materials — neither  requiring  nor  prohibiting  the  use 
of  the  same — and  the  contractor,  in  performing  his  contract, 
uses  patented  materials,  the  mere  use  of  such  materials  by 
the  contractor  will  not  vitiate  the  assessment,  where  the 
superintendent  of  streets  certifies  that  the  work  was  properly 
done.  [Dunne  v.  Altschul,  57  Cal.  472.  See  subdivision  6 
of  section  34  of  the  act.] 

The  council  has  jurisdiction  or  power  to  contract  only 
for  such  street  work  as  is  named  in  the  resolution  of  inten- 
tion, and  the  contract  should  be  for  the  exact  work  named 
in  the  resolution  of  intention — no  more  and  no  less.  How- 
ever, if  the  contract  includes  more  work  than  is  mentioned 
in  the  resolution  of  intention,  the  result  may  be  different 
from  what  it  would  be  if  the  contract  were  for  less  work 
than  that  mentioned  in  the  resolution. 

In  the  former  case,  i.  e.,  where  the  contract  includes  more 
work  than  is  named  in  the  resolution,  the  right  of  the  con- 
tractor to  recover  depends  upon  whether  the  contract  is 
severable  or  not. 

If  the  contract  includes  work  not  named  in  the  resolu- 
tion the  right  of  the  contractor  to  recover,  in  that  case, 
depends  upon  whether  the  work  named  in  the  resolution 
and  in  the  contract  therefor,  can  be  separated  from  the 
work  included  in  the  contract  but  not  named  in  the  resolu- 
tion. Thus,  if  the  resolution  of  intention  declares  only  an 
intention  to  macadamize  a  street,  and  the  contract  should 
include  curbing  as  well  as  macadamizing,  the  contractor 
may,  nevertheless,  recover  for  the  macadamizing,  if  it  can 
be  separated  from  the  curbing  so  that  the  cost  of  macada- 
mizing, according  to  the  contract  price  of  the  same,  can 


54      STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

be  separated  from  the  cost  of  the  curbing.  The  only 
remedy  of  the  property  owner  is  by  appeal  to  the  council. 
[Baudry  v.  Valdez,  32  Gal.  269;  Dyer  v.  Scalmaiiiiii,  69  Gal. 
637.] 

So,  also,  if  the  resolution  of  intention  includes  two  or 
more  kinds  of  work,  and  the  contract  follows  the  resolution 
in  this  respect,  and  as  to  one  of  the  kinds  of  work  ordered 
the  council  never  acquired  jurisdiction,  the  contract  is  still 
valid  as  to  the  work  properly  included  in  the  resolution  of 
intention.  Thus  under  the  act  of  1872,  a  petition  was 
necessary  to  empower  the  board  of  supervisors  to  order 
grading,  but  was  not  necessary  to  empower  the  board  to 
order  macadamizing;  nevertheless,  if  both  be  ordered  in  one 
resolution  of  intention,  without  any  petition  being  filed,  the 
contract  for  macadamizing  is  valid,  though  void  as  to  the 
grading.  [Gafney  v.  San  Francisco,  72  Gal.  146,  151.] 

The  assessment  and  demand,  however,  must  be  for  the 
amount  recoverable.  [Borland  v.  Bergson,  78  Gal.  637; 
Chambers  v.  Satterlee,  40  Gal.  497;  Dyer  v.  Chase,  52  Gal. 
440;  Donnelly  v.  Howard,  60  Gal.  291.]  On  the  other  hand 
the  contractor  cannot  recover  at  all  if  the  work  named  in 
the  resolution  of  intention,  and  the  cost  thereof  cannot 
be  separated  from  that  which  is  not  mentioned  in  the  reso- 
lution. The  contract  is  void  as  to  the  work  not  mentioned 
in  the  resolution,  because  as  to  this  work  the  council  never 
acquired  jurisdiction  to  order  it  to  be  done,  and  if  the  con- 
tract is  not  severable,  the  whole  must  fall.  [Himmelmaim 
v.  Satterlee,  50  Gal.  68;  Nicolson  Pavement  Co.  v.  Fay,  35 
Gal.  695;  Dorland  v.  Bergson,  78  Gal.  637;  City  of  Stockton 
v.  Creanor,  45  Gal.  643;  Partridge  v.  Lucas,  decided  Sept. 
11,  1893.] 

While  the  contractor  may  recover,  notwithstanding  the 
fact  that  the  contract  calls  for  more  work  than  the  resolu- 
tion of  intention  authorizes,  provided  the  contract  be  sev- 
erable, the  converse  of  the  proposition  is  not  true.  That  is 
to  say,  if  the  contract  calls  for  less  work  than  that 
named  in  the  resolution  of  intention,  it  is  void  and  there 
can  be  no  recovery  under  it.  [City  of  Stockton  v.  Whit- 
more,  50  Gal.  554;  McBean  v.  Redick,  96  Gal.  191;  Dough- 
erty v.  Hitchcock,  35  Gal.  512.] 

The  written  contract  must  follow  the  award,  and  if  it 
grants  more  time  for  the  completion  of  the  work  than  is 
specified  in  the  award,  it  is  not  the  contract  the  superin- 
tendent is  authorized  to  execute,  and  is,  therefore,  void. 
[Brock  v.  Luning,  89  Gal.  316.] 

The  contract  will  not  be  invalidated  if  it  contain  a 
provision  to  the  effect  that  there  shall  be  no  assessment  on 


FRAUDULENT  SIDE  AGREEMENT  g1 m™ 

the  adjoining  property  for  improving  that  part  of  the  street 
occupied  by  a  street  railway  company,  but  that  the  com- 
pany shall  pay  therefor.  [Ferine  v.  Forbush,  97  Cal.  305.] 

A  clause  in  a  contract  to  the  effect  that  the  contractor 
shall  keep  the  street  in  repair  for  five  years  imposes  an 
additional  burden  on  the  property  owner,  not  authorized 
by  the  statute,  and  the  contract  and  assessment  under  it 
are  void.  It  matters  not  that  the  testimony  of  the  con- 
tractor shows  that  this  clause  did  not  enhance  the  amount 
of  his  bid,  as  others  might  have  bid  a  less  amount  if  the 
contract  had  not  contained  such  requirement.  [Brown  v. 
Jenks,  decided  by  our  Supreme  Court,  March  27,  1893,  32 
Pac.  Rep.  701.] 

Fraud  on  the  Part  of  the  Contractor  in  Entering  into  the 
Contract.  If  the  contractor,  before  the  contract  is  awarded, 
combines  and  confederates  with  a  portion  of  the  property 
owners,  and,  for  the  purpose  of  inducing  those  with  whom 
he  thus  combines  to  sign  a  petition  asking  the  council  to 
do  the  work,  he  enters  into  a  private  side  agreement  with 
these  property  owners,  agreeing  to  charge  them  less  for 
their  portion  of  the  cost  of  the  work  than  the  other  prop- 
erty owners,  this  side  agreement  is  a  fraud  upon  the  prop- 
erty owners  not  confederating  with  the  contractor.  It  was 
held  in  Nolan  v.  Reese,  32  Cal.  484,  that,  notwithstanding 
the  fact  that  this  side  agreement  was  a  fraud  in  law,  the 
defrauded  property  owners  could  not  set  it  up  as  a  defense 
to  an  action  by  the  contractor  upon  the  assessment,  because 
the  act  then  in  existence — the  act  of  1862,  statutes  1862, 
page  391  et  seq. — did  not  admit  such  a  defense,  and  that 
the  property  owner's  only  remedy  was  by  appeal  to  the 
council.  [Chambers  v.  Satterlee,  40  Cal.  520;  Himmel- 
mann  v.  Hoadley,  44  Cal.  213.] 

In  the  case  of  Brady  v.  Bartlett,  56  Cal.  350,  however,  it 
was  held  that  under  the  13th  section  of  the  act  of  1872 
[Statutes  1871-2,  p.  817],  this  defense  could  be  set  up 
by  the  property  owner,  arid  in  that  case  it  was  held 
that  such  fraudulent  side  agreement  invalidated  the  con- 
tract with  the  city,  and  also  the  assessment  made  thereun- 
der. This  act  of  1872  expressly  provided  that  "fraud  in 
the  assessment  or  in  any  of  the  acts  or  proceedings  prior 
thereto"  might  be  set  up  in  defense  to  the  action.  [Statutes 
1871-2,  p.  817.J  Section  12  of  the  Vrooman  act  is  the 
section  which  corresponds  to  section  13  of  this  act  of  1872. 
[See  section  12  of  the  Act,  post.]  Section  12  of 
the  Vrooman  act  does  not  expressly  provide  for  such 
a  defense,  and  it  is  probable,  unless  there  be  some 
provision  overlooked  by  the  author,  that  the  doctrine 


56      STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

of  Nolan  v.  Eeese,  32  Gal.  484,  will  be  followed  by  the 
courts  in  actions  arising  under  the  Vrooman  act,  if  such 
a  defense  is  interposed  to  an  action  upon  an  assessment  for 
work  done  under  the  Vrooman  act.  By  section  11  of  the 
Act  it  is  provided  that  "no  assessment  shall  be 
held  invalid,  except  upon  appeal  to  the  city  council,  as 
provided  by  this  section,  for  any  error,  informality  or  other 
defect  in  any  of  the  proceedings  prior  to  the  assessment, 
or  in  the  assessment  itself,  when  notice  of  the  intention  of 
the  council  to  order  the  work  to  be  done,  for  which  the 
assessment  is  made,  has  been  actually  published  in  any 
designated  newspaper  of  said  city  for  the  length  of  time 
prescribed  by  law,  before  the  passage  of  the  resolution 
ordering  the  work  to  be  done."  This  language  is,  in  itself, 
broad  enough  to  shut  out  all  inquiry  (except  upon  appeal  to 
the  council)  into  the  performance  of  the  jurisdictional 
prerequisites  to  be  performed  subsequent  to  the  publication 
of  notice  of  intention  to  order  the  work  to  be  done.  But, 
as  held  in  Manning  v.  Den,  90  Cal.  610,  the  property 
owner  does  not,  by  failing  to  appeal  to  the  council,  waive 
the  right  to  resist  payment  of  an  assessment  when  there 
has  been  a  failure  to  perform  any  one  of  the  jurisdictional 
prerequisites  in  the  manner  provided  for  by  the  statute, 
as,  for  example,  where  the  superintendent  of  streets  and  the 
contractor  have  executed  the  contract  prematurely  or 
have  neglected  to  enter  into  and  execute  the  written  con- 
tract within  the  time  required  by  the  statute.  But  this  ruling 
does  not  prevent  a  failure  to  appeal  from  operating  as  a 
waiver  of  the  right  to  collaterally  attack  the  contract  or 
assessment  because  of  some  error,  informality  or 
other  defect  in  the  proceedings,  not  amounting  to 
a  failure  to  perform  a  jurisdictional  prerequisite,  and  it 
appears  from  the  decision  in  Nolan  v.  Reese  that  a  fraudu- 
lent side  agreement  is  an  informality  or  defect  which  does 
not  effect  the  jurisdiction  or  power  of  the  city  authorities. 
The  ten  necessary  jurisdictional  prerequisites  to  the 
existence  of  a  valid  contract,  under  which  the  contractor 
may  recover  upon  assessments  for  work  performed,  have 
now  been  considered  in  the  notes  to  the  above  section  of 
the  act  [Sec.  5]  and  in.  the  notes  to  section  3.  They  are: 
(1.)  Passage  of  resolution  of  intention;  (2.)  posting  and 
publication  of  resolution  of  intention;  (3.)  posting  and  pub- 
lication of  notices  of  passage  of  the  resolution  of  inten- 
tion; (4-)  passage  of  resolution  of  construction  or  order 
that  the  work  be  done;  (5.)  publication  of  order  to  do  the 
work  (these  five  jurisdictional  prerequisites  are  provided 
for  by  section  3  of  the  act);  (6.)  publication  and  posting 


RE-ADVERTISEMENT   FOR     1'ROPOSALS       ifi.^jffif11*^1        57 

of  notices  inviting  sealed  proposals;  (7.)  consideration  of 
the  bids  by  the  council;  (8.)  award  of  the  contract;  (9.) 
publication  and  posting  of  notices  of  award  of  contract; 
(10.)  execution  of  written  contract  by  the  superintendent 
of  streets.  [See  xiipi-n,  pp.  18—19.] 

6.  OtJicr  rrfjtt'nr  in  cuts  of  Section  5-  Section  5  of  the  act  like- 
wise provides  for  certain  other  requirements,  some  of 
which  must  be  complied  with  if  occasion  gives  rise  to 
them,  e.  g.,  the  re-advertisement  for  bids,  etc.,  while 
others  aro  a  part  of  the  procedure  attending  the  regular 
performance  of  the  jurisdictions!  requirements.  These 
requirements  are: 

(J.)  Proposals  must  be  accompanied  by  a  certified  check 
or  bond,  and  "no  proposal  or  bid  shall  be  considered  unless 
accompanied  by  said  check  or  bond  satisfactory  to  the 
council." 

(2.)  Re-advertisement  for  Proposals  or  Bids.  There  are  three 
cases  in  which  it  might  become  necessary  to  re-advertise  for 
bids,  viz: 

(a.)  The  council  may  reject  any  and  all  proposals,  should 
it  deem  this  for  the  public  good,  and  also  the  bid  of  any 
party  who  has  been  delinquent  and  unfaithful  in  any  former 
contract  with  the  municipality.  Should  the  council  thus 
reject  all  proposals  or  bids,  it  may  re-advertise  for  bids. 

(b.)  A  majority  of  the  council,  less  than  three-fourths, 
may  vote  to  award  the  contract  to  a  bidder,  but  the  mayor 
may  not  approve  the  award;  in  such  case,  the  award  not 
being  approved  by  the  mayor  or  a  three-fourths  vote  of  the 
council,  the  council,  without  further  proceedings,  may  re-ad- 
vertise for  proposals  or  bids,  as  in  the  first  instance. 

(c.)  If  an  original  bidder  to  whom  the  contract  was  duly 
awarded  in  the  iirst  instance  neglects,  fails  or  refuses,  for 
fifteen  days  after  the  first  posting  and  publication  of  the 
notice  of  award,  to  enter  into  the  contract,  the  council,  with- 
out further  proceedings,  may  again  advertise  for  proposals 
or  bids,  as  in  the  first  instance,  and  award  the  contract  to 
the  lowest  bidder. 

The  contractor,  or  the  owners  who  have  themselves  taken 
the  contract,  might  not  complete  the  same  within  the  time  lim- 
ited in  the  contract,  or  within  such  further  time  as  the  city 
council  may  have  given  them.  In  such  case,  after  the 
superintendent  of  streets  has  reported  such  delinquency  to 
the  council,  the  council  "  may  relet  the  unfinished  portion 
of  such  work,  after  pursuing  the  formalities  prescribed 
hereinbefore  for  the  letting  of  the  whole  in  the  first 
instance."  In  such  case, i.e., where  the  contractor  by  failing 
to  complete  his  contract  within  the  proper  time  has  left  a 


58        STREET  WORK  LAW- — STREET  IMPROVEMENT  ACT 

portion  of  the  work  unfinished,  the  council  does  not  re-ad- 
vertise for  bids,  or  relet  the  contract,  as  in  the  three  cases 
above  enumerated,  but  commences  original  proceedings,  de 
novo,  and  relets  such  unfinished  portion  only  ''after  pursu- 
ing the  formalities  prescribed  hereinbefore  for  the  letting 
of  the  whole  in  the  first  instance."  The  portion  thus  left 
unfinished  is  not  the  same  work  as  that  described  in  the 
original  resolution  of  intention  and  the  notices  subsequent 
thereto.  It  is  a  smaller  part  of  the  work  originally  proposed 
to  be  done,  and  therefore,  as  such  unfinished  work  is  not 
the  same  work  originally  described  in  the  resolution  of 
intention,  it  would  seem,  but  reasonable  to  require  entirely 
new  proceedings,  de  capo,  to  be  begun. 

Furthermore,  the  portion  of  the  work  thus  left  unfinished 
is  not  the  work  which  the  council,  in  the  first  instance, 
ordered  to  be  done.  It  is  true  that  if,  after  the  coun- 
cil has  ordered  certain  work  to  be  done,  no  valid 
contract  therefor  is  let,  or,  if  being  let,  the  contract 
is  not  performed  at  all,  the  council  may  proceed  to 
re-advertise  for  bids  and  relet  the  contract  without  tak- 
ing steps  to  acquire  jurisdiction  as  in  the  first  instance. 
The  order  to  do  the  work  is  in  the  nature*  of  a  judgment 
[Dougherty  v.  Foley,  32  Cal.  403],  and  the  subsequent  pro- 
ceedings are  ministerial  in  their  character  and  for  the  pur- 
pose of  carrying  this  order  or  quasi  judgment  into  effect. 
In  such  case  there  is  a  valid  subsisting  order  for  the  work 
which  may  be  made  the  foundation  for  a  subsequent  con- 
tract to  do  the  work  described  in  the  order  and  ordered  to 
be  done.  But  where  a  contract  has  been  duly  let  and  the 
work  partly  perfoimed  and  left  unfinished,  there  is  then  no 
order  for  doing  that  particular  work  which  constitutes  such 
unfinished  portion,  and  to  bring  into  existence  a  valid 
order  upon  which  a  contract  for  doing  this  unfinished  por- 
tion may  be  based,  it  seems  to  be  necessary  for  the  council 
to  commence  entirely  new  proceedings  de  capo  so  as  to 
acquire  jurisdiction  to  make  an  order  to  do  such  unfinished 
portion,  in  order  that  the  contract  may  follow  the  order  and 
be  a  contract  for  the  performance  of  the  particular  work 
thus  ordered  to  be  done. 

Procedure  on  Re-advertising  and  Reletting  Contract.  Ifr 
after  the  contract  has  been  let  and  entered  into,  but  before 
any  portion  of  the  work  has  been  done,  the  contractor  fails 
to  enter  upon  the  performance  of  the  work  within  the 
time  fixed  in  his  contract  to  perform,  the  council  may 
re-advertise  for  bids  and  relet  the  contract  without  taking 
steps  to  acquire  jurisdiction  as  in  the  first  instance.  And 
this,  even  though  there  should  be  no  express  provision  of 


RE- ADVERTISING CONTRACTOR'S  BOND       ^r I»,f812Sended       59 


Mar.  31,  1891. 


the  statute  authorizing  re-advertising  and  reletting  in  such 
case.  [Dougherty  v.  Foley,  32  Cal.  403.]  In  this  case  the 
court,  per  Shafter,  J.,  said:  "The  board  having  acquired 
jurisdiction  in  the  manner  pointed  out  in  the  fourth  sec- 
tion of  the  act  of  1862  [statutes  1862,  p.  392],  ordered  the 
work  to  be  done.  This  order  was  in  the  nature  of  a  judg- 
ment. The  subsequent  steps  were  ministerial  in  their 
character.  They  were  taken  for  the  purpose  of  carrying 
the  order  into  execution.  The  failure  of  the  contractor  to 
perform  his  contract  could  not  on  any  known  principle 
affect  the  validity  nor  impair  the  efficiency  of  the  order. 
If  the  contract  had  been  kept,  the  order  would  have  been 
fnn<ius  officio;  but  as  it  was  not  kept  the  requirement  that 
the  'work  should  be  done'  stood  unexecuted,  and  as 
mandatory  as  ever.  *  *  *  The  work  having  been 
ordered,  the  process  of  doing  it  was  by  contract.  When 
the  contract  failed  by  the  bad  faith  of  the  man  who  made 
it,  the  case  stood  as  it  would  if  no  contract  had  ever  been 
made,  and  the  statute  process  could  be  repeated  upon  the 
unexecuted  order."  [See  also  Himmelmann  v.  Oliver,  34 
Cal.  246.] 

If  the  contractor,  or  the  owners  who  take  the  contract, 
fail  to  perform  any  part  of  it,  and  the  council  re-advertises 
for  proposals,  and  relets  the  contract,  or  if  in  any  case 
where  it  is  proper,  proposals  are  re-advertised  for,  the  same 
course  must  be  pursued  which  is  prescribed  in  the  first 
instance  for  letting  the  contract,  in  so  far  as  the  proceedings 
subsequent  to  the  order  for  doing  the  work  are  concerned. 
Therefore,  as  in  the  first  instance,  it  is  necessary  that  the 
council  should  pass  a  resolution  or  order  directing  the 
clerk  to  post  and  publish  the  notices  inviting  proposals,  it 
follows  that  if,  in  re-advertising  for  sealed  proposals,  the 
clerk  posts  and  publishes  such  notices  without  a  resolution 
or  order  by  the  council  therefor,  the  posting  and  publish- 
ing are  insufficient  and  the  proceedings  are  therefore  void. 
[Meuser  v.  Risdon,  36  Cal.  239.] 

(3.)  Lot  Owners  Taking  Contract.  The  owners  of  three- 
fourths  of  the  frontage,  or  their  agents,  who  shall  make 
oath  that  they  are  such  owners  or  agents,  may,  without  pre- 
senting sealed  proposals  or  bids,  and  within  ten  days  after 
the  first  posting  and  publication  of  the  notice  of  the 
award  of  the  contract  to  the  successful  bidder,  elect  to 
take  the  work  and  enter  into  a  contract  to  do  it  at  the  same 
price  at  which  it  was  awarded. 

(4-)  Bond  Accompanying  Contract.  All  contractors,  con- 
tracting owners  included  are,  by  the  act,  required  to  give  a 
bond,  at  the  time  of  executing  the  contract,  conditioned  for 


60     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

the  faithful  performance  of  the  contract,  the  bond  to  be 
to  the  satisfaction  and  approval  of  the  superintendent  of 
streets. 

It  was  held  in  Miller  v.  Mayo,  88  Gal.  568,  that  the  prop- 
erty owner,  in  an  action  to  foreclose  alien  for  street  assess- 
ment can  not  object  to  the  correctness  of  the  assessment  by 
reason  of  the  omission  of  the  superintendent  of  streets  to 
approve  the  bond  of  the  contractor. 

7.  Assignment  of  Contract.  A  contract  to  perform  street 
work  may  be  assigned,  and  the  contract  may  be  fulfilled  by 
the  assignee,  who  can  enforce  the  same.  [Taylor  v.  Palmer, 
31  Cal.  241.]  These  street  work  contract's  do  not  belong  to 
that  class  of  contracts  which  the  party  who  is  to  perform 
the  stipulated  work  is  not  permitted  to  assign  by 
reason  of  the  trust  and  confidence  reposed  in  his  skill  and 
ability  by  the  other  contracting  party.  [Id.] 

Where  a  contract  is  thus  assigned  and  the  assignee  does 
the  work,  the  warrant  running  to  the  original  contractor, 
his  agents  or  assigns,  may  be  issued  and  delivered  to  the 
original  contractor,  and  the  demand  for  payment  may  be 
made  by  him.  In  suph  case  the  original  contractor  acts  as 
the  agent  of  his  assignee.  [Id.] 

If  a  lot  owner  takes  the  contract  and  then  assigns  it  to 
some  one  else,  who  performs  the  contract,  the  assignee 
may  sue  his  assignor — the  lot  owner  arid  original  con- 
tractor— for  the  assessment 'against  his  lot,  and  it  cannot  be 
objected  that  the  lot  owner,  as  contractor,  cannot  sue  him- 
self as  lot  owner  upon  a  contract  made  with  himself,  and 
that  therefore  his  assignee  cannot  sue  him.  The  reason  is 
that  the  contractor  or  his  assignee  does  not  sue  upon  the 
contract,  but  takes  the  place  of  the  city  in  suing  to  recover 
the  tax  levied  or  assessed  upon  the  lots  to  pay  for  the 
improvement.  A  triangular  relation  exists  between  the 
city,  the  contractor  and  the  lot  owner.  The  city  govern- 
ment and  the  contractor  are  the  only  parties  to  the  pro- 
ceeding so  far  as  making  the  improvement  is  concerned. 
The  adjoining  property  holders  are  not  parties  to 
the  contract.  The  improvement  being  done, 
the  city  government  acts  alone  in  its  political 
capacity  in  apportioning  and  levying  the  tax;  but  when 
provision  is  made  for  the  collection  of  the  tax  the  city  gov- 
ernment steps  out  of  the  triangle,  and  the  contractor  is 
thrust  into  her  place  and  made  her  agent  for  the  collec- 
tion of  the  tax.  [Hendrick  v.  Crowley,  31  Cal.  472. J  In 
case  of  an  assignment  of  the  contract,  a  debt  due  to  a  prop- 
erty owner  from  the  contractor  agreed  to  be  set  off*  by  the 
latter,  cannot  be  set  off  against  the  contractor's  assignee  by 


SECTION  SIX  OF  THE  ACT  B<5M±?f  61 


whom  the  whole  work  was  done  without  notice  of  the  agree- 
ment. [Himmelmann  r.  Reay,  38  Cal.  163. J  In  this  case 
the  contractor  agreed  with  one  of  the  property  owners 
whose  property  was  assessed  to  pay  for  the  improvement, 
and  to  whom  the  contractor  was  indebted,  that  the  con- 
tractor's debt  to  the  property  owner  might  be  credited  by 
the  amount  of  the  property  owner's  'assessment.  Before 
any  work  was  done  by  the  contractor  he  assigned  his  con- 
tract to  another  who  did  the  work.  The  assignee  of  the 
contractor  after  doing  the  work,  assigned  his  claim  to  the 
plaintiff.  Neither  the  plaintiff  nor  his  assignor  who  did 
the  work — the  assignee  of  the  contractor — had  any  notice 
of  the  agreement  between  the  property  owner  and  the  con- 
tractor. In  an  action  by  plaintiff  against  defendant,  the 
property  owner,  for  the  amount  of  his  assessment,  it  was 
held  that  the  indebtedness  from  the  contractor  to  the 
defendant  furnished  no  ground  for  a  counter  claim. 

If  certain  of  the  property  owners  take  the'  contract,  and 
after  they  have  done  the  work  and  the  assessment  is  made, 
assign  all  their  right  and  title  in  the  contract  and  in  the 
assessment,  warrant  and  diagram,  and  all  the  moneys  due 
and  to  grow  due  thereon,  they  are  estopped  to  deny  the 
validity  of  the  contract  and  of  the  assessment.  [Callender 
v.  Patterson,  GO  Cal.  356.] 

SECTION- (j.    Ti,  intendent  of  streets  is  hereby  authorized,  in  his 

official  capacity,  to  make  all  written  contracts,  and  receive  all  bonds 
authorized  hy  this  act,  and  to  do  any  other  act,  either  express  or  implied, 
that  pertains  to  the  street  department  under  this  act;  and  he  shall  fix  the 
time  for  the  commencement,  which  shall  not  be  more  than  fifteen  days 
from  the  date  of  the  contract,  and  for  the  completion  of  the  work  under 
all  contracts  entered  into  by  him,  which  work  shall  be  prosecuted  with 
diligence  from  day  to  day  thereafter  to  completion,  and  he  may  extend 
the  time  so  fixed  from  time  to  time,  under  the  direction  of  the  city  coun- 
cil. The  work  provided  for  in  section  2  of  this  act,  must,  in  all  cases,  be 
done  ujider  the  direction  and  to  the  satisfaction  of  the  superintendent  of 
streets,  and  the  materials  used  shall  comply  with  the  specifications  and  be 
to  the  satisfaction  of  said  superintendent  of  streets,  and  all  contracts 
made  therefor  must  contain  a  provision  to  that  effect,  and  also  express 
notice,  that,  in  no  case,  except  where  it  is  otherwise  provided  in  this  act, 
will  the  city,  or  any  officer  thereof,  be  liable  for  any  portion  of  the 
expense,  nor  for  any  delinquency  of  persons  or  property  assessed.  The 
city  council  may,  by  ordinance,  prescribe  general  rules  directing  the 
superintendent  of  streets  and  the  contractor  as  to  the  materials  to  be 
used,  and  the  mode  of  executing  the  work,  under  all  contracts  thereafter 
made.  The  assessment  and  apportionment  of  the  expenses  of  all  such 
work  or  improvement  shall  be  made  by  the  superintendent  of  streets  in 
the  mode  herein  provided.  [Statutes  1885,  p.  161.] 

[Section  6  of  the  act  of  March  18,  1885,  never  has  been  amended.] 


62     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

Section  6  of  the  act  expressly  directs  the  superintendent 
to  insert  four  certain  provisions  in  the  written  contract, 
viz:  (1.)  A  provision  fixing  the  time  for  the  commence- 
ment and  completion  of  the  work;  (#,)  a  provision  that  the 
work  shall  be  done  under  his  direction  and  to  his  satisfac- 
tion; (3.)  that  the  materials  used  shall  comply  with  the  speci- 
fications and  be  to  the  satisfaction  of  the  superintendent  of 
streets,  and  (4.)  that,  in  no  case,  except  where  it  is  other- 
wise provided  in  the  act,  will  the  city  or  any  officer  thereof 
be  liable  for  any  portion  of  the  expense,  nor  for  any  delin- 
quency of  persons  or  property  assessed.  These  four  pro- 
visions must  be  inserted  in  the  contract  or  else  it  will  be 
void.  [Supra,  page  52;  Libby  v.  Ellsworth,  97  Cal.  316; 
Washburn  v.  Lyons,  97  Cal.  314.]  But  the  contract 
need  not  follow  the  precise  language  of  the  statute, 
the  call  of  the  statute  will  be  satisfied  if  the  contract  "can 
be  held  to  contain  the  condition  in  question  by  a  fair  and 
reasonable  construction."  [Taylor  v.  Palmer,  31  Cal.  240; 
Emery  v.  S.  F.  Gas  Co.,  28  Cal.  346,  377.] 

Section  6  likewise  empowers  the  superintendent  of 
streets  as  follows: 

1.  To     make   all    written     contracts     and     receive     all 
bonds,  and  to  do  any  other  act,  either   express    or  implied, 
that    pertains    to    the    street    department.       The    clause, 
authorizing  the  superintendent   of  streets  "to  do  any  other 
act,  either  express    or    implied,  that    pertains    to  the  street 
department,"  received  a   construction   in   Donnelly  v.  Till- 
man,  47  Cal.  40,  where  it  was  held  that  it  is  the   intention 
of  the  statute  that  the  council   should  have  all  the  authority 
in  respect  to  the  improvement  of  streets,  which  is  granted 
by  the  statute,  but  which  is    not    conferred  expressly  or  by 
necessary   implication  upon  some  of  the  officers  mentioned 
in  the  statute,  and  that  the  statute  only  grants  to  the  super- 
intendent of  streets  power  over  such  acts   as  relate  to  the 
business  of  the  street  department. 

2.  Section  6  likewise  authorizes  the   superintendent  of 
streets  to  extend  the  time  fixed  for    the    completion    of  the 
work,  from  time   to    time,  "under    the   direction  of  the  city 
council"     The  superintendent  has  no  authority  to  grant  an 
extension   of  time   except  "under  the  direction  of  the  city 
council,"  i,  e.,  pursuant  to    an  order    or   resolution    of  the 
council    granting    an    extension,    and    the    extension,    if 
granted,  must  be  granted  during  the   life    of  the    contract, 
i.  e.,  before  the  time   for   completion   has   run   out.     If  not 
granted  during  the  life  of  the    contract  the    assessment  is 
void.     [Dougherty    v.    Coffin,    69    Cal.    454;    Fanning   v. 
Schammel,  68  Cal.  428;  Beveridge  v.    Livingstone,  54  Cal. 


EXTENSION  OF  TIME  ON  CONTRACT         M arches Ai885°f         63 

54;  Mappa  v.  Los  Angeles,  61  Cal.  309;  Turney  v.  Dough- 
erty, 53  Cal.  619.]  The  fact  that  the  extension  was  made 
with  knowledge  that  the  work  had  not  been  finished,  and 
that  upon  the  faith  thereof  the  contractor  expended  money 
in  good  faith  to  complete  the  contract,  cannot  cure  the 
invalidity  of  the  extension.  [Raisch  v.  San  Francisco,  80 
Cal.  1;  Dougherty  v.  Nevada  Bank,  81  Cal.  lf)2."| 
The  extension  must  he  granted  by  the  council  during 
the  life  of  the  contract,  and  if,  during  this  time,  the 
council  grants  the  extension,  the  extension  will  be  valid 
even  if  the  ministerial  acts  which  the  statute  requires  of 
the  superintendent  to  be  done  in  this  connection,  be  not 
done.  Me  Vary  v.  Boyd,  89  Cal.  304,  where  it  was  held  fchat 
a  failure  of  the  superintendent  of  streets  'to  endorse  upon 
the  original  contract  any  extension  of  time  properly 
granted  by  the  board  of  supervisors — under  the  act  of 
1872 — or  to  cause  the  resolution  of  extension  to  be  recorded 
until  after  the  period  fixed  by  the  contract,  does  not  render 
the  extension  ineffectual.  [See  Ede  v.  Knight,  93  Cal.  159; 
Brock  v.  Luning,  89  Cal.  316.]  The  extension  will  be 
sufficient  if,  by  an  application  of  the  maxim  id  cerium  est 
quod  cerium  reddi  poiest  it  can  be  sufficiently  seen  that  the 
resolution  of  extension  points  to  the  particular  contract  in 
question.  Thus,  if  the  resolution  of  extension  refer  to  the 
contract  by  number  and  specify  the  streets  and  the  work  to 
be  done  as  described  in  the  contract,  it  will  not  be  invali- 
dated because  of  an  error  in  naming  the  contractor. 
[Anderson  v.  De  Urioste,  96  Cal.  404.]  If  the  work  is  not 
completed  within  the  time  mentioned  in  the  contract, 
or  within  the  time  provided  for  by  regular  extension, 
granted  during  the  life  of  the  contract,  the  assessment  will 
be  void  and  the  fact  that  the  city  failed  to  furnish  a  steam 
roller  as  provided  in  the  specifications,  and  that  therefore 
the  contractor  could  not  complete  the  wrork  in  time,  will 
not  prevent  the  assessment  from  ~being  void.  [Heft  v. 
Payne,  97  Cal.  108.] 

3.  Section  6  likewise  empowers  the  superintendent  of 
streets  to  make  the  assessment  and  apportion  the  expense 
in  the  mode  provided  by  the  act. 

The  next  section  (section  7  of  the  act)  provides  the  rules 
in  accordance  with  which  the  assessments  are  to  be  made, 
and  section  8  prescribes  the  form  of  the  assessment.  [Vide 
sections  7  and  8  and  the  notes  thereto.] 


G4     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

SECTION  7.  Subdivision  One — The  expenses  incurred  for  any  work 
authorized  by  this  act  (which  expense  shall  not  include  the  cost  of  any 
work  done  in  such  portion  of  any  street  as  is  required  by  law  to  be  kept 
in  order  or  repair  by  any  person  or  company  having  railroad  tracks 
thereon,  nor  include  work  which  shall  have  been  declared  in  the  resolution 
of  intention  to  be  assessed  on  a  district  benefited)  shall  be  assessed  upon 
the  lots  and  lands  fronting  thereon,  except  as  hereinafter  specifically  pro- 
vided; each  lot  or  portion  of  a  lot  being  separately  assessed,  ir_  proportion 
to  the  frontage,  at  a  rate  per  front  foot  sufficient  to  cover  the  total  expense 
of 'the  work. 

Subdivision  Two — The  expense  of  all  improvements,  except  such  as  are 
done  by  contractors  under  the  provisions  of  section  thirteen  of  this  act,  until 
the  streets,  avenues,  street  crossings,  lanes, alleys,  places,  or  courts  are  finally 
accepted,  as  provided  in  section  twenty  of  this  act,  shall  be  assessed  upon 
the  lots  and  lands  as  provided  in  this  section,  according  to  the  nature  and 
character  of  the  work ;  and  after  su?h  acceptance  the  expense  of  all  the 
work  thereafter  done  thereon  shall  be  paid  by  said  city  out  of  the  street 
department  fund. 

Subditision  Three — The  expense  of  the  work  done  on  main  street  cross- 
ings shall  be  assessed  at  a  uniform  rate  per  front  foot  of  the  quarter  blocks 
and  irregular  blocks  adjoining  and  cornering  upon  the  crossings,  and 
separately  upon  the  whole  of  each  lot  or  portion  of  a  lot  having  any 
frontage  in  the  said  blocks  fronting  on  said  main  streets,  half  way  to  the 
next  main  street  crossing,  and  all  the  way  on  said  blocks  to  a  boundary 
line  of  the  city  where  no  such  crossing  intervenes,  but  only  according  to 
its  frontage  in  said  quarter  blocks  and  irregular  blocks. 

Subdivision  Four — Where  a  main  street  terminates  in  another  main 
street,  the  expenses  of  the  work  done  on  one-half  of  the  width  of  the 
street  opposite  the  termination  shall  be  assessed  upon  the  lots  in  each  of 
the  two  quarter  blocks  adjoining  and  cornering  on  the  same,  according  to 
the  frontage  of  such  lots  on  said  main  streets,  and  the  expense  of  the 
other  half  of  the  width  of  said  street  upon  the  lot  or  lots  fronting  on  the 
latter  half  of  the  street  at  such  termination. 

Subdivision  Five — Where  any  alley  or  subdivision  street  crosses  a  main 
street,  the  expense  of  all  work  done  on  said  crossing  shall  be  assessed  on  all 
lots  or  portions  of  lots  half  way  on  said  alley  or  subdivision  street  to  the  next 
crossing  or  intersection,  or  to  the  end  of  such  alley  or  subdivision  street  if 
it  does  not  meet  another. 

Subdivision  Six — The  expense  of  work  done  on  alley  or  subdivision 
street  cross  ings  shall  be  assessed  upon  the  lots  fronting  upon  such  alley  or 
subdivision  streets  on  each  side  thereof,  in  all  directions,  half  way  to  the 
next  street,  place,  or  court,  on  either  side,  respectively,  or  to  the  end  of 
such  alley  or  subdivision  street,  if  it  does  not  meet  another. 

Subdivision  Seven — Where  a  subdivision  street,  avenue,  lane,  alley, 
place,  or  court  terminates  in  another  street,  avenue,  lane,  alley,  place,  or 
court,  the  expense  of  the  work  done  on  one-half  of  the  width  of  the  sub- 
division street,  avenue,  lane,  alley,  place,  or  court  opposite  the  termina- 
tion, shall  be  assessed  upon  the  lot  or  lots  fronting  on  such  subdivision 
street,  or  avenue,  lane,  alley,  place  or  court  so  terminating,  according  to 
its  frontage  thereon,  half  way  on  each  side,  respectively,  to  the  next 
street,  avenue,  lane,  alley,  court  or  place,  or  to  the  end  of  such  street, 


^SITT 

SECTION    SEVEN    OP    THE    ACT 

avenue,  lane,  alley,  place  or  court,  if  it  does  not  meet  another,  and 
the  other  one-half  of  the  width  upon  the  lots  fronting  such  termination. 

Subdivision  Eight — Where  any  work  mentioned  in  this  act  (man-holes, 
cesspools,  culverts,  crosswalks,  piling  and  capping  excepted)  is  done  on 
either  or  both  sides  of  the  center  line  of  any  street  for  one  block  or  less, 
and  further  work  opposite  to  the  work  of  the  same  class  already  done  is 
ordered  to  be  done  to  complete  the  unimproved  portion  of  said  street,  the 
assessment  to  cover  the  total  expenses  of  said  work  so  ordered  shall  bo 
made  upon  the  lots  or  portions  of  the  lots  only  fronting  the  portions  of 
the  work  so  ordered.  And  when  sewering  or  resewering  is  ordered  to  be 
done  under  the  sidewalk  on  only  one  side  of  a  street  for  any  length 
thereof,  the  assessment  for  its  expenses  shall  be  made  only  upon  the  lot? 
and  lands  fronting  nearest  upon  that  side,  and  for  intervening  intersections 
only  upon  the  two  quarter  blocks  adjoining  and  cornering  upon  that  side. 

Subdivision  Nine — Section  one  of  chapter  three  hundred  and  twenty-five 
of  the  laws  of  this  state  entitled  "An  act  amendatory  of  and  supple- 
mentary to  'An  act  to  provide  revenue  for  the  support  of  the  government 
of  this  state,'  approved  April  twenty-ninth,  eighteen  hundred  and  fifty- 
seven,"  approved  April  nineteenth,  eighteen  hundred  and  fifty-nine, 
shall  not  be  applicable  to  the  provisions  of  this  section;  but  the  property 
herein  mentioned  shall  be  subject  to  the  provisions  of  this  act,  and  be 
assessed  for  work  done  under  the  provisions  of  this  section. 

Subdivision  Ten — It  shall  be  lawful  for  the  owner  or  owners  of  lots  or 
lands  fronting  upon  any  street,  the  width  and  grade  of  which  have  been 
established  by  the  city  council,  to  perform  at  his  or  their  own  expense 
(after  obtaining  permission  from  the  council  so  to  do,  but  before  said 
council  has  passed  its  resolution  of  intention  to  order  grading  inclusive  of 
this)  any  grading  upon  said  street,  to  its  full  width,  or  to  the  center  line 
thereof,  and  to  its  grade  as  then  established,  and  thereupon  to  procure,  at 
his  or  their  own  expense,  a  certificate  from  the  city  engineer,  setting  forth 
the  number  of  cubic  yards  of  cutting  and  filling  made  by  him  or  them  in 
said  grading,  and  the  proportions  performed  by  each  owner,  and  that  the 
the  same  is  done  to  the  established  width  and  grade  of  said  street,  or  to 
tne  center  line  thereof,  and  thereafter  to  file  said  certificate  with  the  super- 
intendent of  streets,  which  certificate  the  superintendent  shail  record  in  a 
book  kept  for  that  purpose  in  his  office,  properly  indexed.  Whenever 
thereafter  the  city  council  orders  the  grading  of  said  street,  or  any  portion 
thereof,  on  which  any  grading  certified  as  aforesaid  has  been  done,  the 
bids  and  the  contract  must  express  the  price  by  the  cubic  yard  for  cutting 
and  filling  in  grading;  and  the  said  owner  or  owners,  and  his  or  their 
successors  in  interest,  shall  be  entitled  to  credit  on  the  assessment  upon  his 
or  their  lots  and  lands  fronting  on  said  street  for  the  grading  thereof,  to 
the  amount  of  the  cubic  yards  of  cutting  and  filling  set  forth  in  his  or 
their  said  certificate,  at  the  prices  named  in  the  contract  for  said  cutting 
and  filling;  or,  ii  the  grade  meanwhile  has  been  duly  altered,  only  for  so 
much  of  said  certified  work  as  would  be  required  for  grading  to  the 
altered  grade;  provided,  hoirece.r,  that  such  owner  cr  owners  shall  not  be 
entitled  to  such  credit  as  may  be  in  excess  of  the  assessments  for  grading 
upon  the  lots  and  lands  owned  by  him  or  them,  and  proportionately 
assessed  1'or  the  whole  of  said  grading;  and  the  superintendent  of  streets 
shall  include  in  the  assessment  for  the  whole  of  said  grading  upon  the 


06     STREET  WORK  LAW — STREET  IMPROVEMENT  ACT 

same  grade  the  number  of  cubic  yards  of  cutting  and  filling  set  forth  in 
any  and  all  certificates  so  recorded  in  his  office,  or  for  the  whole  of  said 
grading  to  the  duly  altered  grade  so  much  of  said  certified  work  as  would 
be  required  for  grading  thereto,  and  shall  enter  corresponding  credits, 
deducting  the  same  as  payments  upon  the  amounts  assessed  against  the 
lots  and  lands  owned,  respectively,  by  said  certified  owners  and  their  suc- 
cessors in  interest;  provided,  however,  that  he  shall  not  so  include  any 
grading  quantities  or  credit  any  sums  in  excess  of  the  proportionate 
assessments  for  the  whole  of  the  grading  which  are  made  upon  any  lota 
and  lands  fronting  upon  said  street  and  belonging  to  any  such  certified 
owners  or  their  successors  in  interest.  Whenever  any  owner  or  owners  of 
any  lots  and  lands  fronting  on  any  street  shall  have  heretofore  done,  or  shall 
hereafter  do,  any  work  (except  grading)  on  such  street,  in  front  of  any 
block,  at  his  or  their  own  expense,  and  the  city  council  shall  subsequently 
order  any  work  to  be  done  of  the  same  class  in  front  of  the  same  block,  said 
work  so  done  at  the  expense  of  such  owner  or  owners  shall  be  exceptecl 
from  the  order  ordering  work  to  be  done,  as  provided  in  subdivision 
eleven  of  this  section  of  this  act;  provided,  that  the  work  so  done  at  the 
expense  of  such  owner  or  owners  shall  be  upon  the  official  grade,  and  in 
condition  satisfactory  to  the  street  superintendent  at  the  time  said  order  is 
passed. 

Subdivision  Eleven — The  city  council  may  include  in  ore  resolution  of 
intention  and  order  any  of  the  different  kinds  of  work  mentioned  in  this 
act,  and  it  may  except  therefrom  any  of  said  work  already  done  upon  the 
street  to  the  official  grade.  The  lots  and  portions  of  lots  fronting  upon 
said  excepted  work  already  done  shall  not  be  included  in  the  frontage 
assessment  for  the  class  of  work  from  which  the  exception  is  made;  pro- 
vided, that  this  shall  not  be  construed  so  as  to  affect  the  special  provisions 
as  to  grading  contained  in  subdivision  ten  of  this  section. 

Subdivision  Twelve — Whenever  the  resolution  of  intention  declares  that 
the  costs  and  expenses  of  the  work  and  improvement  are  to  be  assessed 
upon  a  district,  the  city  council  shall  direct  the  city  engineer  to  make  a 
diagram  of  the  property  affected  or  benefited  by  the  proposed  work  or 
improvement,  as  described  in  the  resolution  of  intention,  and  to  be 
assessed  to  pay  the  expenses  thereof.  Such  diagram  shall  show  each  sepa- 
rate lot,  piece,  or  parcel  of  land,  the  area  in  square  feet  of  each  of  such 
lots,  pieces,  or  parcels  of  land,  and  the  relative  location  of  the  same  to  the 
work  proposed  to  be  done,  all  within  the  limits  of  the  assessment  district; 
and  when  said  diagram  shall  have  been  approved  by  the  city  council,  the 
clerk  shall,  at  the  time  of  such  approval,  certify  the  fact  and  date  thereof. 
Immediately  thereafter  the  said  diagram  shall  be  delivered  to  the  superin- 
tendent of  streets  of  said  city,  who  shall,  after  the  contractor  of  any  street 
work  has  fulfilled  his  contract  to  the  satisfaction  of  said  superintendent  of 
streets,  or  city  council,  on  appeal,  proceed  to  estimate  upon  the  lands, 
lots  or  portions  of  lots  within  said  assessment  district,  as  shown  by  said 
diagram,  the  benefits  arising  from  such  work,  and  to  be  received  by  each 
such  lot,  portion  of  such  lot,  piece,  or  subdivision  of  land,  and  shall 
thereupon  assess  upon  and  against  said  lands  in  said  assessment  district 
the  total  amount  of  the  costs  and  expenses  of  such  proposed  work,  and  in 
so  doing  shall  assess  said  total  sum  upon  the  several  pieces,  parcels,  lots, 
or  portions  of  lots,  and  subdivisions  of  land  in  said  district  benefited 


IMPROVEMENTS  BY  RAILWAY  COMPANIES.    g£. .^f^l; as amended       67 

thereby,  to  wit:  Upon  each,  respectively,  in  proportion  to  the  estimated 
benefits  to  be  received  by  each  of  said  several  lots,  portions  of  lots,  or 
subdivisions  of  land.  In  other  respects  the  assessment  shall  be  as  pro- 
vided in  the  next  section,  and  the  provisions  of  subdivisions  three,  four, 
five,  six,  seven  and  eight  of  this  section  shall  not  be  applicable  to  the  work 
or  improvement  provided  for  in  this  subdivision.  [Amendment  approved 
March  31,  1891,  Statutes  1891,  p.  201.} 

[Section  7  was  amended  in  1889,  by  act  of    March  14,   1889,  statutes 
'89,  p.  103;  and  again  in  1891,  by  act  of  March  31, 1891.  statutes '91,  p.  201.] 

SUBDIVISION    1    OF    SECTION    SEVEN. 

Subdivision  1.  Subdivision  1  of  section  7  provides:  (1.) 
That  the  expense  incurred  for  any  work  authorized  by 
the  act  shall  not  include  the  cost  of  any  work  done  in  such 
portion  of  any  street  as  is  required  by  law  to  be  kept  in 
order  or  repair  by  any  person  or  company  having  railroad 
tracks  thereon,  nor  shall  such  expense  include  work  which 
shall  have  been  declared  in  the  resolution  of  intention  to  be 
assessed  on  a  district  benefited;  (2.)  that  the  expense 
incurred  for  any  work  authorized  by  the  act  shall  be 
assessed  upon  the  lots  and  lands  fronting  thereon,  except 
as  in  this  act  otherwise  specially  provided;  and  (3.)  that 
each  lot  or  portion  of  a  lot  shall  be  separately  assessed  in 
proportion  to  the  frontage,  at  a  rate  per  front  foot  suffi- 
cient to  cover  the  total  expense  of  the  work. 

I.  Cost  of  Work  Upon  Such  Portion  of  a  Street  as  is  Re- 
<jvired  by  Law  to  be  Kept  in  Order  or  Repair  by  Oivnersof  Street 
Railways.  The  law — not  the  act  under  consideration  provid- 
ing for  work  upon  streets,  alleys,  lanes  etc.,  but  section  498  of 
the  Civil  Code — requires  the  city  authorities  to  impose  upon 
street  railway  companies,  as  a  condition  to  grants  of  their 
franchises,  an  obligation  or  agreement  "to  plank,  pave,  or 
macadamize  the  entire  length  of  the  street  used  by  their 
track,  between  the  rails,  and  for  two  feet  on  each  side 
thereof,  and  between  the  tracks,  if  there  be  more  than  one, 
and  to  keep  the  same  constantly  in  repair,  flush  with  the 
street  and  with  good  crossings."  [Civil  Code  section  498.] 
Section  511  of  the  Civil  Code  makes  the  above  provisions 
of  section  498,  applicable  to  street  railroads  constructed, 
owned  and  operated  by  natural  persons,  as  well  as  corpor- 
ations. The  act  providing  for  work  upon  streets,  lanes, 
alleys,  etc.,  i.  e.  the  act  of  March  18,  1885,  and  the  several 
acts  amendatory  thereof, — prior  to  'the  act  of  February  27, 
1893 — do  not  include  any  mode  for  collecting  from  the 
owners  of  street  railways  any  portion  of  the  expense  of 
improving  a  street.  [Schmidt  r.  Market  St.  R.  R.  Co.,  90 
Cal.  39.]  The  above  section  of  the  act — i.  e.  section  7  of  the 


()8     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

act  of  March  18,  1885,  as  amended — exempts  from  the1 
expense  assessable  against  the  lots  of  the  property  owners, 
all  the  expense  of  any  work  done  in  such  portion  of  any 
street  as  is  required  by  law  to  be  kept  in  order  or  repair  by 
any  person  or  company  having  railroad  tracks  thereon, 
and  section  6  of  the  act  of  February  27,  1893,  [statutes 
1893,  pages  36-38]  provides  that  whenever  any  railroad 
track  or  tracks  exist  upon  any  street  or  streets  on  which 
street  or  streets  the  city  council  has  ordered  work  to  be 
done  or  improvements  made,  the  council  may,  at  anytime 
thereafter;  order  the  person  or  company  having  such  tracks 
to  perform  upon  the  portion  required  by  law  to  be  kept  in 
order  or  repair  by  such  person  or  company,  the  work  or 
improvements,  similar  in  all  respects  to  that  already  ordered 
to  be  performed  upon  the  main  part  of  the  street,  under  the 
same  specifications  and  superintendence,  with  the  same 
materials,  within  the  same  time,  and  to  the  like  satisfaction 
and  acceptance  by  the  superintendent  of  streets. 
The  section  then  proceeds  to  provide  how  the  work 
shall  be  ordered  done  and  how  done,  in  case  the 
person  or  company  having  the  railroad  tracks  refuses  to 
obey  the  order,  and  how  the  cost  thereof  shall  be  paid,  etc. 

Prior  to  the  passage  of  this  act  of  February  27,  1893, 
there  was  no  machinery  provided  by  law  for  collecting 
from  a  street  railway  company,  whose  road  occupies  a  por- 
tion of  the  street,  any  portion  of  the  expense  of  improv- 
ing the  street.  [Schmidt  v.  Market  St.  R.  11.  Co.  supra.] 

If  section  6  of  the  act  of  February,  27,  1893, 
be  considered  as  providing  such  machinery,  it 
is  a  provision  injected  into  an  act,  which,  as  expressed 
in  its  title,  is  "An  act  to  provide  a  system  of  street  improve- 
ment bonds  to  represent  certain  assessments 
for  the  cost  of  street  work  and  improvements 
within  municipalities,  and  also  for  the  payment  of 
such  bonds. "  It  is  essentially  and  primarily  an  act  to  pro- 
vide for  the  issuance  of  bonds  as  a  means  of  paying  the  cost 
of  street  work.  The  title  of  the  act  says  nothing  about  pro- 
viding the  machinery  for  imposing  upon  the  owners  of 
street  railways,  whose  tracks  occupy  a  portion  of  the  street, 
the  cost  of  the  improvements  which  the  law  [section  498  C. 
C.]  requires  to  be  done  by  such  owners.  The  act  is  con- 
structed upon  the  assumption  or  theory  that  other  acts, 
which  it  collectively  designates  as  the  "  Street  Work  Act," 
provide  all  the  machinery  for  acquiring  jurisdiction  to 
order  street  work  to  be  done,  for  levying  assessments  to  pay 
for  the  same,  etc.  Its  primary  object  is  to  provide  for  a  sys- 
tem of  serial  bonds,  each  bond  representing  the  amount  which 


ASSESSMENTS  AGAINST  RAILWAYS 

has  been  assessed  against  each  lot  or  parcel  of  land  under  the 
provisions  of  the  acts  collectively  designated  as  the  "Street 
Work  Act."  And,  quaere,  if  the  title  of  the  act  did  state  that 
one  of  its  objects  was  to  provide  the  machinery  for  collect- 
ing from  the  owners  of  street  railways  the  portion  of  the 
expense  which  the  law  [Sec.  498  C.  C.]  imposes  upon  them 
as  a  condition  of  the  grant  of  their  franchises,  would  not 
the  act  be  repugnant  to  the  provisions  of  article  IV,  section 
24  of  the  constitution?  "  Every  act  shall  embrace  but  one 
subject,  which  subject  shall  be  expressed  in  its  title. "  And, 
as  the  title  of  the  act  states,  its  subject  is  "  a  system  of 
street  improvement  bonds." 

If  section  6  of  the  act  of  Feby.  27,  1893— in  so  far  as  it 
purports  to  provide  a  mode  for  collecting  from  street  rail- 
way owners  the  cost  of  the  work  which  the  law  [section  498 
C.  C.]  requires  such  owners  to  do — -be  repugnant  to  article 
IV  of  section  24  of  the  constitution,  then,  the  statement  by 
Mr.  Justice  Harrison  in  Schmidt  v.  Market  St.  R.  R.  Co. ,90 
Ciil.39 — "no  mode  is  provided  in  the  act  for  collecting  from 
a  street- railroad  corporation,  whose  road  occupies  a  portion 
of  the  street,  any  portion  of  the  expense  of  improving  the 
street" — is  as  true  now  as  it  was  prior  to  the  said  act  of  Feb. 
27, 1893. 

In  said  case  of  Schmidt  v.  Market  St.  R.  R.  Co.,  it  was 
held  that  the  amount  of  the  assessment  might  be  recovered 
by  the  contractor  upon  an  implied  contract  on  the  part  of 
the  railroad  company,  arising  out  of  its  acceptance  of  its 
franchise  under  a  grant  containing  a  condition  that  the 
company  should  be  held  for  the  payment  of  its  proportion 
of  the  cost  of  the  improvement,  and  that  the  amount  of  the 
assessment  might  be  collected  in  the  manner  provided  by 
law  for  the  collection  of  other  street  assessments.  But, 
quaere,  in  the  absence  of  such  a  condition  in  the  ordinance 
granting  the  franchise,  how  shall  a  street  car  company,  or 
persons  owning  and  operating  street  cars,  be  compelled  to 
pay  the  cost  of  improving  the  street  between  the  rails,  etc.? 
[See  notes  to  section  6  of  the  act  of  Feby.  27,  1893,  post.] 

II.  Front-Foot  Mode  of  Assessment  is  the  Mode  Provided 
by  the  Act.  Subdivision  1  of  section  7  of  the  act  lays  down 
the  general  rule  which  is  to  govern  in  levying  assessments 
to  pay  the  expense  incurred  for  any  work  authorized  by  the 
act.  That  general  rule  is  that  such  expense  shall  be  assessed 
upon  the  lots  and  lands  fronting  upon  the  work.  That  is, 
the  act  adopts  the  front-foot  mode  of  assessment,  and  the 
only  exceptions  thereto  are  such  as  are  specially  provided 
by  the  act. 


70     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

The  last  part  of  subdivision  1  of  the  section  defines  this 
front-foot  mode  and  general  rule  of  assessment  as  follows: 
Each  lot  or  portion  of  a  lot  fronting  on  the  work  shall  be 
separately  assessed,  in  proportion  to  the  frontage,  at  a  rate 
per  front  foot  sufficient  to  cover  the  total  expense  of  the 
work.  That  is,  the  total  expense  of  the  work — including 
the  incidentals,  as  printing,  etc., — is  divided  by  the  total 
number  of  front  feet  fronting  on  the  whole  work  or 
improvement,  and  the  quotient  is  the  rate  of  assessment  per 
front  foot,  and  there  is  assessed  against  each  lot  or  portion  of 
a  lot  fronting  on  the  work  an  amount  equal  to  this  quotient, 
or  rate  of  assessment  per  front  foot,  multiplied  by  the  num- 
ber of  front  feet  in  such  lot  or  portion  of  a  lot. 

In  People  v.  Lynch,  51  Cal.  22-23,  Mr.  Justice  McKinstry 
said:  "  It  has  been  repeatedly  held  that  an  attempt  by  the 
legislature  to  compel  each  lot  upon  a  street  to  pay  the  whole 
expense  of  grading  and  paving  along  its  front  can  not  be 
maintained,  because,  while  there  is  an  apparent  uniformity, 
the  measure  of  equality  required  by  the  constitution  is 
entirely  wanting" — citing  9  Dana  513;  8  Mich.  274.  That 
is  to  say,  a  law  which  should  attempt  to  make  each  lot  liable 
for  the  whole  cost  of  doing  that  particular  part  of  the  improve- 
ment which  lies  in  front  of  each  lot,  would  be  unconstitu- 
tional. But  the  front-foot  mode  of  assessment,  as  defined 
by  subdivision  1  of  section  7  of  the  act  is  constitutional, 
because  it  apportions  to  each  lot  its  share  of  the  total 
expense  according  to  the  amount  of  frontage  of  each  lot, 
and  the  amount  assessed  against  each  lot  is  increased  or 
diminished  by  the  assessment  upon  the  adjacent  lots. 
[See  Cooley's  Constitutional  Limitations,  page  508,  3rd  Ed.] 

III.     Front-Foot  Mode  of  Assessment  is  Constitutional. 

The  front  foot  mode  of  assessment  is  constitutional. 
[Emery  v.  S.  F.  Gas  Co.,  28  Cal.  346;  Emery  v.  Bradford  29 
Cal.  82;  Taylor  v.  Palmer  31  Cal.  241;  Whiting  v.  Quacken- 
bush,  54  Cal.  306;  Whiting  v.  Townsend,  57  Cal.  515;  Lent 
v.  Tillson,  72  Cal. 426;  Jennings  v.  Le  Breton,  80  Cal.  8,15- 
16.] 

The  power  of  assessment  is  a  part  of  the  general  power  of 
taxation.  The  word  "assessment,"  however,  while  it  repre- 
sents in  part  the  general  power  of  taxation  vested  in  the 
government,  is  used  to  designate  a  particular  branch  of 
that  power  specifically  different  in  its  purpose  and  mode  of 
working  from  that  intended  by  the  more  general  and  com- 
prehensive term  of  "taxation."  By  the  latter  the  power  of 
imposing  taxes  upon  the  property  of  the  citizens  generally, 
for  the  support  of  the  government,  is  intended.  By  the  for- 
*.  e.,  "assessment,"  is  meant  the  power  of  imposing  for 


CONSTITUTIONALITY  ^1  ?,ubJ,t a9  amended       71 


March  31.  1891. 


the  purpose  of  improving  the  ptreets  of  cities  and  incorporated 
villages,  a  tax  upon  the  property  bordering  upon  or  in  the 
vicinity  of  the  improvement.  In  Emery  v.  S.  F.  Gas  Co. 
supra,  page  357,  Judge  Sawyer  said:  "The  term  'taxation/ 
both  in  common  parlance  and  in  the  laws  of  the  several 
states,  has  been  ordinarily  used,  not  to  express  the  idea  of 
the  sovereign  power  which  is  exercised,  but  the  exercise 
of  that  power  for  a  particular  purpose,  viz.,  to  raise  a 
revenue  for  the  general  and  ordinary  expenses  of  the  govern- 
ment, whether  it  be  the  stato,  county,  town  or  city  gov- 
ernment. But  there  is  another  class  of  expenses,  also  of  a 
public  nature,  necessary  to  be  provided  for,  peculiar  to 
the  local  governments  of  counties,  cites,  towns  and  even 
smaller  subdivisions,  such  as  opening,  grading,  improving 
in  various  ways,  and  repairing,  highways  and  streets,  and 
constructing  sewers  in  cities,  and  canals  and  ditches 
for  the  purpose  of  drainage  in  the  country.  These  burdens 
have  always,  in  every  state,  from  its  first  settlement,  been 
charged  upon  the  localities  benefited,  and  have  been 
apportioned  upon  various  principles;  but  whatever  princi- 
ple of  apportionment  has  been  adopted  they  have  been 
known,  both  in  the  legislation  and  ordinary  speech  of  the 
country,  by  the  name  of  assessments" 

It  was  held  in  the  case  of  Burnett  v.  Mayor,  etc.,  of  Sacra- 
ment!2  Cal.  76,  that  the  provision  of  the  constitution  requir- 
ing "taxation"  to  be  equal  and  uniform,  was  not  applicable 
to  assessments  for  street  purposes,  and  in  Emery  v.  S.  F. 
Gas.  Co.,  supra,  it  was  held  that  the  further  provision 
of  the  constitution  that  "all  property  in  this  state 
shall  be  taxed  in  proportion  to  its  value"  is  equally 
inapplicable  to  "assessments."  In  this  latter  case,  the 
court,  Sawyer  justice,  after  quoting  from  the  opinion  in 
Burnett  v.  Mayor  etc.,  of  Sacramento,  said:  "The  question 
was  [in  the  case  uf  Burnett  vs.  Mayor  etc.  of  Sacramento] 
whether  the  term  'taxation/  as  used  in  that  section 
[section  13,  article  XI,  constitution  of  1863],  is  applicable 
to  assessments  for  street  improvements.  If  the  term 
'taxation' in  the  first  clause, — 'taxation  shall  be  equal  and 
uniform/ — is  inapplicable  to  a  street  assessment,  of 
course  the  term,  as  used  in  the  second  clause  of  the  same 
section, — 'all  property  in  this  state  shall  be  taxed  in  propor- 
tion to  its  value/— must  also  be  inapplicable."  [28  Cal.  361.] 
Accordingly,  it  was  held  in  this  latter  case,  Emery  v.  S.  F. 
Gas.  Co.,  that  there  is  no  restriction  in  the  constitution 
upon  the  power  of  the  legislature  to  impose  assessments  to 
defray  the  expenses  of  public  improvements  in  the  nature 
of  grading,  planking  and  improving  streets  upon  the  prop- 


72      STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

erty  supposed  to  be  benefited  thereby.  And  that  it  is 
authorized  to  apportion  the  amount  to  be  raised  according 
to  value,  according  to  the  benefits  received,  in  proportion 
to  frontage  or  the  superficial  contents,  or  to  adopt  any  prin- 
ciple of  apportionment  that  can  be  referred  to  the  general 
sovereign  rights  of  taxation.  |  28  Gal.  pp.  372-3.]  While 
the  term  "assessment"  though  referable  to  the  general 
power  of  taxation,  is  not  synonomous  with  the  term  "taxa- 
tion" as  used  in  common  parlance  and  in  the  restrictions 
of  the  constitution  upon  the  exercise  of  the  power  of  taxa- 
tion for  purposes  of  raising  revenue  for  the  general  and 
ordinary  expenses  of  the  government,  still  an  assessment 
is  a  tax.  And  although  it  is  such  a  tax  as  is  not  prohibited 
by  that  clause  of  the  constitution  which  provides  that  "all 
property  shall  be  taxed  in  proportion  to  its  value,"  it  is  of 
the  very  essence  of  all  taxation,  in  every  form,  that  it  be 
levied  with  equality  and  uniformity,  and  therefore  there 
must  be  some  system  of  apportionment.  The  express 
written  inhibitions  of  the  constitution  relative  to  "taxa- 
tion" may  not  be*  applicable  to  "assessments,"  because  of 
the  difference  between  these  two  branches  of  the  general 
power  of  taxation,  as  pointed  out  supra,  nevertheless,  aside 
from  the  provisions  of  all  written. constitutions,  in  every 
free  country  an  approximation  toward  equality  and  uni- 
formity in  the  exercise  of  the  sovereign  power  of  taxation 
is  inherently  necessary,  and,  as  an  "assessment"  is  made  by 
the  exercise  of  that  power,  it  follows  that,  to  approximate 
equality  and  uniformity,  the  assessment  must  be  levied  pur- 
suant to  some  general  system  of  apportionment.  The  legis- 
lature may  adopt  any  principle  of  apportionment  that  can 
be  referred  to  the  general  sovereign  power  of  taxation,  but 
there  must  be  some  system  of  apportionment  which  will 
approximate  equality  and  uniformity.  For,  whatever  the 
standard  of  apportionment,  or  the  basis  of  taxation,  the 
requirement  that  it  shall  be  uniform  is  universal,  the  differ- 
ence being  only  in  the  character  of  the  uniformity.  [Peo- 
ple v.  Lynch,  51  Cal.  15;  Whiting  v.  Quackenbush,  54  Cal. 
306.]  In  People  v.  Lynch,  supra,  Mr.  Justice  McKinstry 
said:  "The  terms  'tax'  and  'assessment'  both  include  the 
idea  of  some  ratio  or  rule  of  apportionment;  so  that,  of 
the  whole  sum  to  be  raised  the  part  paid  by  one  piece  of 
property  shall  have  some  known  relation  to  or  be  affected 
by  that  paid  by  another." 

An  assessment  for  local  improvements,  as  improvements 
upon  streets,  etc.,  is  not  required  to  be  equal  and  uniform 
because  a  section  of  the  constitution  dealing  with  the  gen- 
eral subject  of  revenue  may  say  that  "taxation  shall  be 


nnvTCTTT'TTT'TnAJ  A  T  TTV  Pec.  7.  Pub.  1,  as  amended         70 

ONSIIJ  OJNA.L1JLY  Mar.  31,  1891.  *° 

equal  and  uniform"  [Burnett  v.  Mayor,  etc.,  of  Sacramento 
12  Gal.  83;  Emery  v.  S.  F.  Gas.  Co.,  28  Cal.  361-2,]  but 
every  assessment  is  required  to  approximate  equality  and 
uniformity  and  therefore  to  be  levied  under  a  system  which 
apportions  it  with  reference  to  some  standard  which  will 
approximate  equality  and  uniformity,  because  it  is  a  tax. 
And  all  taxes,  in  free  countries,  should  be  levied  upon  prin- 
ciples that  approximate  uniformity  and  equality  whether 
their  constitutions  expressly  require  it  or  not.  Therefore, 
it  is  held  that,  in  levying  an  assessment,  if  a  lot  of  land, 
within  the  district  declared  to  be  benefited,  be  not  assessed, 
there  is  no  equality  or  uniformity  in  the  assess- 
ment, and  the  assessment  is,  therefore,  void.  The 
omission  of  the  lot  from  the  assessment  disturbs  the 
equality  and  uniformity  of  the  levy,  and  renders  the 
assessment  void.  [People  v.  Lynch,  51  Cal.  15; 
Whiting  v.  Quackenbush,  54  Cal.  310;  Moulton  v.  Parks,  64 
Cal.  181;  Dyer  v.  Harrison,  63  Cal.  447;  Diggins  v.  Brown, 
76  Cal.  318;  Davies  v.  Los  Angeles,  86  Cal.  49.]  In  Whiting 
v.  Quackenbush,  supra,  the  court  said:  "Every  tax  must  be 
levied  with  equality  and  uniformity  under  some  system  of 
apportionment;  an  assessment  for  improving  a  street  in  a 
city  is  a  tax;  therefore,  every  assessment  must  be  levied 
with  equality  and  uniformity.  But  if  it  be  so  levied,  under 
a  system  which  apportions  it  with  reference  to  the  number 
of  feet  fronting  on  the  improvement,  or  to  any  other  standard 
which  will  approximate  equality  and  uniformity,  it  is  not 
void  for  want  of  equality  and  uniformity."  While,  as  held 
in  the  cases  last  above  cited,  the  assessment  is  at  least  irreg- 
ular if  any  lot  liable  to  assessment  is  omitted  from  the 
assessment  roll,  still  section  11  of  the  act  provides  that  an 
appeal  may  be  taken  to  the  council  by  any  owner  raising 
any  objection  to  the  legality  or  correctness  of  the  assessment; 
that  on  such  appeal  the  council  may  correct  the  assessment; 
that  its  decision  shall  be  final,  and  that  no  assessment 
shall  be  held  invalid,  except  upon  appeal  to  the  city  council, 
for  any  error,  informality  or  defect  in  the  assessment.  And 
in  the  very  recent  case  of  Dowling  v.  Altschul,  decided 
June  13,  1893,  33  Pac.  Rep.  495,  it  was  held  that,  under  the 
act  of  March  18,  1885,  an  appeal  on  the  ground  that  an 
assessment  for  paving  a  cul-de-sac  failed  to  assess  the  land 
at  the  end  of  the  same,  presented  a  question  which  the 
city  council  had  power  to  determine  on  appeal,  and  that, 
therefore,  its  decision  was  conclusive.  This  case  does  not 
hold  that  an  assessment  is  valid  if  a  lot,  liable  to  assess- 
ment, be  omitted  from  the  assessment  roll;  but,  as  the 
statute  now  in  force — section  11  of  act  of  March  18,  1885, — 


74  STREET  WORK  LAW — 'STREET    IMPROVEMENT    ACT 

provides  a  tribunal  for  the  litigation  of  this  question, — 
namely  the  city  council — and  as  the  statute  expressly  states 
that  the  decision  of  such  tribunal  upon  such  a  question,  shall 
be  final  and  conclusive,  it  is  therefore  held  that  an 
appeal  is  the  only  remedy  of  a  lot  owner  dissatisfied  because 
a  lot,  liable  to  assessment,  has  been  omitted,  and  that  the 
decision  of  the  council  upon  such  question  is  final  and  con- 
clusive. An  error  in  the  assessment  roll  is  an  error  capable 
of  correction  by  the  council  on  appeal  if  the  work  has  been 
properly  done  under  a  valid  contract  therefor.  And  it 
seems  that,  if  the  error  or  irregularity  complained  of  is  cap- 
able of  correction  by  the  council  on  appeal,  the  appeal  to 
the  council  is  the  only  remedy.  [See  opinion  of  Temple  J., 
in  Chambers^.  Satterlee  40  Gal.  524.  See  post  section  11  o£ 
the  act,  and  the  notes  thereto.] 

IV.      General  Principles  of  Street  Assessments. 

(a.)  Legislature  can  not  Directly  Exercise  Power  of 
Assessment.  The  legislature  can  not  directly  exercise  the 
power  of  assessment  within  an.  incorporated  city,  but  may 
empower  the  municipal  authorities  to  do  so.  In  cities  the 
power  of  assessment  can  only  be  exercised  through  the 
medium  of  the  corporate  authorities.  [People  v.  Lynch, 
51  Cal.  15;  Taylor  v.  Palmer,  31  Gal.  240;  Brady  v.  King,  53 
Gal.  44;  Schumacker  v.  Toberman,  56  Cal.  508.] 

(b.)  Owner  not  Personally  Liable.  The  owner,  of  the 
land,  bordering  upon  an  improved  street,  can  not  be  made 
liable  for  the  cost  of  the  improvement  beyond  the  value  of 
his  land.  The  legislature  can  not  impose  a  personal  liabil- 
ity upon  the  owners  of  the  property  assessed,  and  any 
statute  purporting  to  impose  such  personal  liability  is,  in 
this  respect,  unconstitutional  and  void.  [Taylor  v.  Palmer, 
31  Cal.  240;  Guerin  v.  Eeese,  33  Cal.  296;  Coniff  v.  Hastings, 
36  Cal.  292;  Gaffney  v.  Donohue,  36  Cal.  104;  Himraelmaim 
v.  Steiner,  38  Cal.  175,  178;  Randolph  v.  Bayue,  44  Cal. 
366;  Gillis  v.  Cleveland,  87  Cal.  214;  Manning  v.  Den,  90 
Cal.  610.]  Nor  can  the  property  owner  be  held  liable  upon 
the  ground  of  a  contract.  [Dyer  v.  Barstow,  50  Cal.  652.] 

(c.)  Not  an  Exercise  of  Power  of  Eminent  Domain.  Street 
assessments  do  not  take  private  property  for  public  use. 
[Emery  v.  S.  F."  Gas  Co.,  28  Cal.  346;  Chambers  v.  Satterlee, 
40  Cal.  497.] 

(d. )  Contract  Not  Affected  by  Subsequent  Changes  in  the 
Law.  Improvement  begun  under  a  law,  after  execution  of 
the  contract,  makes  that  law  a  part  of  the  contract  as  to 
mode  of  assessment,  which  subsequent  amendment  of  the 
law  does  not  affect.  [Houston  v.  McKenna,  22  Cal.  550.] 
The  same  is  true  as  to  changes  in  the  constitution  made 


rtvvr-D'D  AT      i>r»Tvr-TT>T  IT  c        Fro.  7.  Sub.  1 ,  as  amended        7  K 
GENERAL    PRINCIPTjES       MM-.  :;i.  IMH.  '*' 

after  the  contract  is  made.  If,  after  the  contract  is  made, 
the  constitution  is  changed  so  as  to  provide  a  new  method 
of  assessment,  it  will  not  affect  the  contract,  and  the  grant- 
ing of  an  extension  of  time  for  the  completion  of  the  work 
will  not  constitute  a  new  contract.  The  provisions  of  the 
law  under  which  a  contract  is  made  enter  into  and  become  a 
part  of  the  contract,  including  all  provisions  for  extensions 
of  time,  and  a  valid  contract  can  not  be  abrogated  by  the 
adoption  of  a  new  constitution,  any  more  than  it  can 
by  the  enactment  of  a  new  law  by  the  legislature.  If 
it  did  it  would  impair  the  obligation  of  the  contract 
and  thus  controvene  the  provision  of  section  10,  article  I 
of  the  federal  constitution,  providing  that  no  state  shall 
pass  any  law  impairing  the  obligation  of  contracts.  [Oak- 
land Pvg.  Co.  v.  Barstpw,  7(.»  <  ;  Ede  v.  Cogswell,  79 
Cal:  278;  I-M<-  v.  Knight,  93  Cal.  151).] 

The  contractor  is  entitled  to  have  the  improvement 
opposite  a  lot  assessed  to  the  whole  lot  without  regard  to 
subsequent  sal<  rtions.  The  lien  attaches  to  the 

whole  lot  in  the  hands  of  a  subsequent  purchaser.  After 
the  expiration  of  the  notice  of  intention — that  is  posting 
and  publication  of  the  resolution  of  intention  and  of  notice 
of  its  passage — the  council  acquires  jurisdiction  of  the  sub- 
ject matter  of  the  improvement,  and  the  contractor  acquires 
a  right,  under  his  contract,  to  have  the  assessment  made 
upon  the  lots  fronting  the  improvement  as  they  existed  at 
the  time  the  jurisdiction  of  the  council  over  the  subject 
matter  attached  under  the  statute,  and  the  owner  of  a  lot 
cannot  defeat  this  right  by  subsequently  conveying  a  por- 
tion of  the  lot.  The  whole  lot,  as  it  existed  when  the  juris- 
diction of  the  council  over  the  subject  matter  of  the  improve- 
ments attached,  is  liable  to  be  assessed  upon  completion 
of  the  work,  no  matter  who  owns  it,  or  what  subdivisions 
may  subsequently  have  been  made  by  the  owner.  [Dough- 
erty v.  Miller,  36  Cal.  83.] 

(e.)  The  Property  Owner  Cannot  set  up  a  Counter  Claim 
for  Damages.  An  assessment  for  the  improvement  of 
streets  is  a  municipal  tax,  levied  by  the  corporation  upon 
the  property  adjacent  to  the  street,  to  defray  the  expenses  of 
the  improvement,  and  therefore  the  property  owner  in  a 
suit  to  recover  the  amount  assessed  against  his  lot  cannot 
set  up  a  counter  claim  for  damages  to  his  land.  "The 
origin ,  obligatory  force  and  whole  nature  of  a  tax,  is  such 
that  it  is  impossible  to  conceive  of  a  demand  that  might  be 
set  off  against  it,  unless  expressly  so  authorized  by  statute." 
[Himmelmann  v.  Spanagel,  39  Cal.  389.  ] 

(f.)     Sale  for  Taxes  Extinguishes  Assessment  Lien.     A  valid 


7H  STREET  WORK  LAW — 'STREET    IMPROVEMENT    ACT 

tax  deed  extinguishes  the  prior  lien  of  a  street  assessment. 
For,  as  a  general  rule,  a  sale  and  conveyance  in  due  form 
for  taxes  extinguishes  all  prior  liens,  whether  for  taxes  or 
otherwise,  and  therefore  where,  pending  an  action  to  enforce 
the  collection  of  a  street  assessment,  a  third  party  procures 
a  valid  tax  deed,  the  tax  deed  extinguishes  the  lien  of  the 
assessment.  [Dougherty  v.  Heuarie,  47  Cal.  10;  Chand- 
ler r.  Dunn,  50  Cal.  15.1 

(g.)  Public  Property  Exempt  from  Street  Assessment. 
Public  property  is  exempt  from  street  assessments  and  such 
property  may  be  exempted  from  the  assessment  although 
situated  within  an  assessment  district  declared  to  be  bene- 
fited by  the  improvement;  and  such  exemption  will  not  ren- 
der the  assessment  violative  of  the  principle  that  all  assess- 
ments must  be  equal  and  uniform.  [Doyle  v.  Austin,  47 
Cal.  353.] 

(h.)  Assessment  need  not  be  Presented  to  Administrator. 
An  assessment  made  after  the  death  of  a  property  owner 
need  not  be  presented  to  his  estate  for  allowance.  It  is  a 
municipal  tax,  aud  the  rule  is  that  taxes  assessed  against 
the  property  of  an  estate,  pending  administration,  are  not 
claims  against  the  estate  which  must  be  presented  to  the 
administrator  for  allowance.  [Hancock  r.  Whittemore,  50 
Cal.  522;  People  v.  Olvera,  43  Cal.  492.] 

(i.)  Can  Only  be  Made  Pursuant  to  Terms  of  a  Statute. 
An  assessment  can  only  be  made  according  to  the  terms  of 
the  statute,  and  where  the  statute  does  not  provide  for  an 
assessment  for  doing  a  particular  kind  of  work,  or  does  not 
provide  for  an  assessment  for  work  done  upon  some  partic- 
ular place,  the  assessment  is  void.  [Bassettr.  EnwrigM,  19 
Cal.  636;  Kelly  v.  Liming,  76  Cal.  311.] 

(j.)  A  Void  Assessment  Cannot  be  Validated  by  Ratifi- 
cation. The  doctrine  of  ratification  has  no  application  to 
street  assessments,  and,  so  far  as  the  lot  owner  is  concerned, 
the  city  cannot,  by  any  act  on  its  part,  ratify  proceedings 
taken  to  improve  a  street  and  impose  an  assessment  on  the 
lot  for  the  same,  so  as  to  make  the  same  valid,  when  they 
were  invalid  in  the  first  instance.  So  far  as  the  lot  owner 
is  concerned,  these  proceedings  are  but  steps  taken  for  the 
purpose  of  imposing  upon  him  a  tax  for  a  specific  purpose, 
and  to  such  proceedings  the  doctrine  of  ratification  has  no 
application.  The  power  of  ratification,  if  it  exits  at  all,  is  in 
the  legislature.  [Meuser  v.  Kisdon,  36  Gal.  239.]  And  the 
power  of  the  legislature  to  ratify  the  proceedings,  if  it  exist- at 
all  in  the  case  of  assessments  for  municipal  improvements, 
is  limited  to  dispensing  with  those  things  which  it  might 
have  dispensed  with  in  the  first  place.  That  is  to  say,  if  the 


GENERAL    PRINCIPLES          S£i SSife*  — "•**       77 


thing  wanting,  or  which  failed  to  be  done,  and  which  con- 
stitutes the  defect  in  the  proceedings,  is  something  the 
necessity  of  which  the  legislature  might  not  have 
dispensed  with  by  prior  statute,  then  it  is 
beyond  the  power  of  the  legislature  to  dispense  with  it  by 
subsequent  statute.  [People  v.  Lynch,  51  Cal.  15.]  In  this 
case  of  People  v.  Lynch,  the  "thing  wanting"  in  the  original 
proceeding  was  "uniformity"  in  the  assessment.  If  the 
assessment  is  void  the  legislature  cannot  validate  it,  nor  can 
it  make  an  assessment  within  an  incorporated  city.  [Brady 
v.  King,  53  Cal.  44;  Schumacker  v.  Toberman,  56  Cal. 
508,511;  Kelly  v.  Liming,  76  Cal.  309.] 

In  San  Francisco  v.  Certain  Real  Estate,  42  Cal.  513,  it 
was  said  that  it  is  competent  for  the  legislature,  by  subse- 
quent enactment,  to  cure  defects  in  the  original  proceeding. 
But  in  People  v.  Lynch,  svpra,  Mr.  Justice  McKinstry  seems 
to  be  of  the  opinion  that  since,  according  to  the  decision  in 
Taylor  v.  Palmer,  31  Cal.  242,  the  legislature  cannot  exer- 
cise the  power  of  assessment  directly  within  municipalities, 
that  therefore  it  cannot,  in  any  case,  ratify  an  assessment 
proceeding. 

In  Keis  r.  Gruff,  51  Cal.  8fi,  the  court,  through  Mr.  Jus- 
tice Rhodes,  stated  that  validating  a  void  assessment  is 
equivalent  to  making  an  assessment  in  the  first  instance. 
In  that  case  Judge  Rhodes  said:  "Assuming  that  the  legis- 
lature may  itself  make  the  assessment,  or,  what  amounts  to 
the  same  thing,  validate  a  void  assessment,  does  the  act  have 
the  effect  to  make  the  assessment  valid,  by  relation,  as  of 
the  date  of  the  invalid  assessment,"  etc.  If,  therefore, 
validating  an  assessment  amounts  to  making  an  assessment, 
and  if  the  legislature  may  not  make  an  assessment  within 
a  municipality,  it  would  seem  to  follow,  necessarily,  that 
the  legislature  cannot  in  any  case  validate  an  assessment 
within  municipalities.  In  this  case  of  Reis  v.  Graff  it  was 
held  that  even  if  the  legislature  may  validate  a  void 
assessment  within  municipalities,  the  assessment  can  only 
become  valid  at  the  date  when  the  curative  act  takes  effect, 
and  the  curative  act  can  not,  by  relation,  make  the  assess- 
ment valid  as  of  the  date  when  it  was  levied.  [See  also 
People  v.  McCain,  51  Cal.  360.] 

In  Fanning  v.  Schammel,  68  Cal.  428,  the  work  was  not 
completed  within  the  time  limited  by  the  contract.  Subse- 
quently the  board  of  supervisors  extended  the  time,  but  as 
it  had  no  jurisdiction  to  extend  the  time  after  the  life  of  the 
contract,  (see  notes  to  sec. 6  of  the  act,  pages  62-63  supra)  the 
order  of  extension  was  unauthorized  and  void.  Nearly  a 
year  after  this  void  order  of  extension,  the  legislature  passed 


78     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

an  act  purporting  to  validate,  ratify  and  confirm  "  all  orders 
and  resolutions  heretofore  from  time  to  time  passed  by  said 
board  of  supervisors  '*  *  *  in  relation  to  street  work, "etc., 
and  it  was  contended  that  this  act  cured  said  defect  in  the 
proceedings,  and  validated  said  order  of  extension,  but  the 
court  said:  "So  far  as  the  statute  attempts  to  vitalize  a  dead 
contract  and  validate  a  void  assessment  for  street  work,  it  is 
unconstitutional  and  void." 

The  validity  of  an  assessment  does  not  depend  upon  the 
validity  of  the  remedy  for  its  enforcement.  [Appeal  of  N.  B. 
and  M.  R.  R.  Co.,  32  Gal.  520.]  An  assessment  to  pay  for 
prior  work  under  an  abortive  contract  is  invalid.  [In  the 
Matter  of  Market  Street,  49  Gal.  546.] 

(k )  Severable  Assessments  Severed  and  Recovery  had  on 
Valid  Part.  If  an  assessment  be  severable,  and  part  be  void 
and  part  valid,  the  total  assessment  may  be  severed  and 
recovery  had  upon  the  valid  part,  provided  there  be  a  proper 
demand  for  the  part  that  is  valid.  That  is  to  say,  where 
there  are  two  assessments — one  void  and  the  other  valid — 
as,  for  example,  where  several  assessments  are  made  to  pay 
the  expenses  of  different  kinds  of  work  contracted  to  be 
done  pursuant  to  a  resolution  of  intention  and  order,  order- 
ing several  kinds  of  work  to  be  done,  these  assessments  may 
be  severed  and  separate  demands  made,  and  in  such  case 
the  contractor  is  entitled  to  recover  the  amount  of  the  valid 
assessment.  [Parker  v.  Reay,  76  Gal.  103;  Ede  v.  Knight, 
93  Gal.  159,  165.] 

In  Frick  v.  Morford,  87  Gal.  576,  an  excess  of  work  was 
done  outside  of  the  limits  fixed  by  the  resolution  of  inten- 
tion. That  is,  the  plans  and  specifications  required  eight 
feet  more  of  sewer  to  be  laid,  than  was  authorized  by  the 
resolution  of  intention.  These  faulty  plans  and  specifica- 
tions were  a  part  of  the  contract,  and  the  contractor  laid 
this  extra  eight  feet  of  sewer,  being  an  excess  of  eight'feet 
outside  of  the  limits  fixed  by  the  resolution  of  intention. 
Held:  (1.)  That  the  work  done  outside  of  the  limits  fixed  by 
the  resolution  was  unauthorized,  and  the  contractor  was  not 
entitled  to  an  assessment  for  the  work  in  excess.  (2.)  That 
if  the  lot  assessed  wholly  fronts  upon  the  work  done  in 
excess  of  authorit}^,  it  cannot  be  held  liable  for  any  assess- 
ment. (3.)  That  if  it  fronts  in  whole  or  in  part  upon  the 
work  authorized  by  the  resolution  of  intention,  the  assess- 
ment against  it  will  not  necessarily  be  rendered  void  by  the 
fact  that  the  entire  assessment  purports  to  make  a  charge 
upon  lots  not  within  the  limits  fixed  by  the  resolution  of 
intention.  (4-)  That  if  it  is  in  part  within  the  excess,  the 
contractor  is  not  entitled  to  an  assessment  against  that  part 


/•<-rwr»\r     DT>T  VPTnT  T?C        Fee  7.  Sub.  1.  as  amended        70 
GENERAL    PRINCIPLES        M.,,-,-1,  :;i    is<n  «v 


March 31,  IM'l. 


of  the  lot  not  fronting  upon  the  work  authorized  by  the 
resolution.  (5.)  That  an  excess  of  work  done  outside  the 
limits  fixed  by  the  lesolutionof  intention,  will  not  invalidate 
an  assessment  against  lots  within  those  limits  for  that  part 
of  the  work  which  was  authorized  by  the  resolution,  if  the 
cost  of  the  work  was  estimated  by  the  linear  foot,  so  that  the 
cost  of  excess  can  be  easily  segregated  from  the  cost  of  the 
remainder,  since  in  that  case  the  assessment  being  severable 
the  void  part  may  be  segregated  from  the  valid  part.  (6.) 
That  if  the  lot  was  wholly  within  the  excess  beyond  the 
limits  authorized  by  the  resolution  of  intention,  the  owner 
was  not  a  party  "aggrieved/'  since  in  such  case  his  lot  could 
not  be  made  liable,  and  therefore  he  was  not  required  to 
appeal  to  the  council.  (7.)  If  his  lot  was  partly  within  such 
cxecss,  and  he  felt  aggrieved  because  the  assessment  in- 
cluded the  expense  of  laying  the  sewer  in  the  eight  feet 
outside  of  the  limits  h'xed  by  the  resolution  of  intention,  his 
only  remedy  was  by  appeal  to  the  council.  [See  Blair  v. 
tuning,  76  Gal.  i:M;  Dyer  v.  Scalmanini,  69  Cal.  637;  Him- 
melmann  r.  Iloadlev,  44  Cal.  270;  Baudry  v.  Valdez,  32 
Cal. 


(I.)  }\TJirn  the  Assessment  is  not  Severable,  if  Part  is  Void  it 
Vitiate*  tlir  \\rj/olt\  When  an  assessment  is  made  in  gross 
for  the  work  of  curbing  and  macadamizing  a  street,  and  the 
>ment  is  invalid  as  to  the  macadamizing,  and  the 
amount  due  for  curbing  cannot  be  segregated  from  the  total 
amount  assessed  against  the  lot,  the  invalidity  of  the  assess- 
ment as  to  the  macadamizing  vitiates  it  as  to  the  curbing, 
and  the  whole  is  void.  [Dorland  v.  Bergson,  78  Cal.  637. 
Partridge  v.  Lucas,  decided  Sept.  11,  1893;  See  also 
Ferine  v.  Forbush,  97  Cal,  305]. 

(nt.)  Each  Lot  is  Independently  Liable.  Each  Iot3  or  portion 
of  a  lot,  is  separately  liable  for  its  proportion  of  the  cost  of 
the  improvement,  and  the  liability  of  each  is  independent 
of  any  other,  and  constitutes  a  separate  liability,  upon  which 
a  separate  cause  of  action  may  be  based.  And  therefore  a 
recovery  of  the  amount  assessed  against  one  lot  is  not  a  bar 
to  an  action  to  recover  the  amount  assessed  against  another 
lot,  although  between  the  same  parties.  The  expense  of  the 
improvement  is  a  charge  upon  the  property  benefited,  or 
supposed  to  be  benefited,  and  is  not  a  charge  against  the 
owner  personally,  and  in  furtherance  of  this  end,  the  iden- 
tity of  the  lot  assessed,  and  not  the  person  who  may  be  the 
owner,  is  made  the  essential  requirement  of  the  statute;  the 
first  must  be  specifically  described,  while  the  latter  may  be 
designated  as  "unknown."  [Gillis  v.  Cleveland,  87  Cal.  214.] 


80  STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

SUBDIVISION  2  OF  SECTION  SEVEN. 

Subdivision  2.  As  stated  supra  in  the  notes  to  sub- 
division 1  of  this  section,  the  front-foot  mode  of  assess- 
ment is  the  general  rule,  and  the  only  exceptions  thereto 
are  such  as  are  "specifically"  provided  in  other  parts 
of  the  act.  Subdivision  2  provides  that  as  to  all  improve- 
ments— except  the  work  of  repairing  and  reconstructing 
provided  for  by  section  thirteen  of  the  act — the  expense 
shall  be  assessed  as  provided  in  this  section — section  seven 
— according  to  the  nature  and  character  of  the  work,  until 
acceptance  of  the  streets,  alleys,  lanes,  etc.,  by  the  council. 
So  that — except  as  to  the  work  of  repairing  and  reconstruct- 
ing provided  for  by  section  thirteen  of  the  act — section 
seven  is  the  section,  and  the  only  section,  which  can  be 
looked  to  for  the  purpose  of  ascertaining  what  property  is 
liable  to  be  assessed  to  pay  for  the  expenses.  That  is,  the 
expenses  incurred  for  any  work  authorized  by  the  act — 
except  the  work  of  repairing  and  reconstructing  provided 
for  by  section  thirteen  of  the  act — shall  be  assessed  upon 
the  lots  and  lands  fronting  on  the  work,  each  lot  or  portion 
of  a  lot  being  separately  assessed  in  proportion  to  the  front- 
age, at  a  rate  per  front  foot  sufficient  to  cover  the  total 
expense  of  the  work,  as  provided  in  sub-division  1 — except 
where  a  different  mode  is  specifically  provided  in  this  same 
section  of  the  act — section  seven.  Section  seven  provides 
a  different  mode  of  assessment  where  the  resolution  of  in- 
tention declares  that  the  costs  and  expenses  of  the  work  and 
improvement  are  to  be  assessed  upon  a  district.  [See  sub- 
division 12  of  section  7]  subdivision  1  of  the  section  de- 
clares the  general  rule  of  assessment  to  be  the  "front-foot 
plan"  But,  where  the  resolution  of  intention  declare  that 
the  costs  and  expenses  shall  be  assessed  upon  a  district,  the 
assessments  are  made  according  to  the  "benefits"  received. 
Subdivision  1  of  section  7  lays  down  the  general  rule,  and 
subdivision  2  states  that  the  exceptions  to  this  general  rule 
must  be  found  in  this  same  section — section  7 — and  not 
elsewhere,  except  as  to  work  of  repairing  and  reconstruct- 
ing done  pursuant  to  the  provisions  of  section  13  of  the  act. 

The  work  provided  for  by  section  13  of  the  act  is  the 
work  of  repairing  and  reconstructing  any  portion  of  any 
improved  street,  lane,  etc.,  out  of  repair  or  needing  recon- 
struction, and  in  condition  to  endanger  persons  or  property 
passing  thereon,  or  in  a  condition  to  interfere  with  the 
public  convenience  in  the  use  thereof.  For  example,  if  a 
street  has  been  paved  with  asphaltum  and  subsequently  a 
portion  of  the  pavement  in  front  of  some  lot  becomes  loose, 


SUBDIVISION    THREE  OF  SECTION  SEVEN    Mar/svi&L  ™ amen<led        81 

and  a  hole  is  made,  so  as  to  leave  this  portion  in  a  condition 
to  interfere  with  the  public  convenience  in  the  use  of  the 
street,  in  such  case  the  street  does  not  need  repaying,  but 
this  particular  spot  needs  to  be  filled  up  with  asphaltum  and 
repaiied,  and  section  13  purports  to  impose  the  duty  of 
doing  this,  and  of  paying  the  expense  thereof,  upon  the 
owner  of  the  lot  fronting  on  this  portion  of  the  street.  [See 
infra  notes  to  section  13.] 

SUBDIVISION  3  OF  SECTION  SEVEN. 

Subdivision  3.  [See  sec.  34,  subdivisions  7  and  12  for 
definitions  of  the  words  "street,"  "main  street,"  "  blocks" 
and  "quarter  block."] 

In  Parker  v.  Reay,  76  Gal.  103,  it  was  held  that  under  the 
act  of  1872,  whore  an  assessment  is  made  for  work  done  on 
a  main  street  crossing,  if  a  lot  is  partly  within  and  partly 
without  one  of  the  quarter  blocks  cornering  upon  the  cross- 
ing, only  such  portion  of  the  lot  must  be  assessed  as  lies 
within  the  quarter  block.  Subdivision  3  of  section  eight  of 
the  act  of  1872,  corresponds  with  subdivision  3  of  section 
seven  supra.  The  language  of  subdivision  3  section  7  of  the 
present  street  work  act,  seems  to  be  capable  of  the  same  con- 
struction as  that  placed  upon  the  corresponding  provision  of 
the  act  of  1872  by  the  Supreme  Court  in  Parker  v.  Reay, 
supra. 

Subdivision  3  of  section  seven  of  the  act  is  divisible  into 
two  parts.  The  first  part  declares  what  the  rate  per  front 
foot  shall  be  and  how  it  shall  be  obtained.  The  second 
part  declares  what  property  shall  be  subjected  to  the  assess- 
ment lien.  (1.)  The  first  part  or  clause  of  subdivision  3  of 
section  seven,  provides  that  the  expense  of  the  work  done 
on  street  crossings,  "  shall  be  assessed  at  a  uniform  rate  per 
front  foot  of  the  quarter  and  irregular  blocks  adjoining  and 
cornering  upon  the  crossings."  That  is,  the  property  made 
subject  to  the  lien  of  the  assessment,  whatever  it  is,  shall 
be  assessed  at  a  certain  rate  per  front  foot.  This  rate 
is  to  be  found  by  dividing  the  total  amount  of  the  expense 
by  the  number  of  front  feet  in  the  four  quarter  or  irregular 
blocks  cornering  upon  the  crossing,  and  the  quotient  thus 
obtained  is  the  rate  of  assessment  per  front  foot  to  be 
assessed  upon  the  property  made  subject  to  the  lien  of  the 
assessment  by  the  second  clause  of  this  subdivision  accord- 
ing to  the  frontage  of  such  property.  The  first  part  or 
first  clause  of  subdivision  3  provides  the  mode  for  measur- 
ing the  amount  per  front  foot  which  is  to  be  assessed  upon  the 
land  made  subject  to  the  lien  of  the  assessment.  (#.)  The  sec- 


82 


STREET  WORK  LAW STREET    IMPROVEMENT    ACT 


ond  part  or  second  clause  of  subdivision  3  of  section  7, declares 
what  property  shall  bear  the  lien  of  the  assessment,  ond  that 
it  shall  be  assessed  according  to  its  frontage  in  said  quar- 
ter blocks  and  irregular  blocks.  The  property  upon 
which  this  part  of  the  section  declares  the  assessment  shall 
be  made,  is  the  following,  viz.:  "The  whole  of  each  lot  or 
portion  of  a  lot,  having  any  frontage  in  the  said  (quarter  or 
irregular)  blocks  fronting  on  said  main  (intersecting) 
streets,  half  way  to  the  next  main  street  crossing,  and  all  the 
way  on  said  blocks  to  a  boundary  line  of  the  city  where  no 
such  crossing  intervenes."  If,  therefore,  the  property 
upon  which  the  assessment  is  to  be  made, —  where  there 
is  such  a  next  main  street  crossing, — is  the*  property 
which  consists  of  each  lot  or  portion  of  a  lot  to  a 
point  "half  way  to  the  next  main  street  crossing," 
it  would  seem  to  follow  that  the  property  beyond  this 
point,  is  not  subject  to  the  lien  of  the  assessment,  and 
therefore,  as  held  in  Parker  v.  Reay,  supra,  where 
there  is  a  lot  in  the  middle  of  a  block,  portion  of  which  is 
on  one  side  of  this  halfway  point  and  portion  on  the  other 
side,  only  that  portion  of  the  lot  is  liable  to  the  assessment 
which  lies  on  that  side  of  the  point  nearest  the  crossing 
upon  which  the  improvement  was  made. 

SUBDIVISION    4    OF    SECTION    SEVEN. 

Subdivision  4-    The  meaning  of  subdivision  4  can  be  most 
clearly  explained   by  means  of  a  diagram  as  follows: 

X  Y 


A  b 

Main  Street        D C        on  which    the  work  is    done. 

E  F 


The  quarter  blocks  of  block  X  are  1,  2,  3  and  4;  and  5, 
6,  7  and  8  are  the  quarter  blocks  of  block  Y.  E  F  is  the  line 
of  termination  and  has  frontage  on  the  main  street  of  the 
work  at  such  termination.  A  B  C  D  is  one-half  of  the 


SUBDIVISION  EIGHT  OF  SECTION  SEVEN       S^"^;  as amended       83 

width  of  the  main  street  on  which  the  work  is  done,  and  is 
the  half  ''opposite"  the  termination.  The  expense  of  the 
work  done  on  this  half  must  be  assessed  upon  the  lots  in 
each  of  the  two  quarter  blocks  adjoining  and  cornering 
upon  this  half  of  the  street,  namely,  the  lots  in  the  quarter 
blocks  4  and  7,  according  to  the  frontage  of  such  lots  in 
each  of  the  two  main  streets.  C  D  E  F  is  the  other  half 
of  the  width  of  the  main  street  upon  which  the  work  is 
done,  and  the  expense  of  improving  this  half  is  assessed 
upon  the  lot  or  lots  fronting  on  this  half  of  the  street  at 
said  termination,  namely,  the  lot  or  lots  of  which  the  line 
E  F  forms  part  or  all  of  the  frontage. 

The  word  "termination"  a?  used  in  this  part  of  the  act 
in  connection  with  street  work  does  not  seem  to  have  any 
well  defined  meaning  of  its  own  independent  of  its  context. 
It  seems  from  its  context  in  this  part  of  the  act  that  the 
word  is  used  to  mean  the  line  E  F  in  the  diagram.  But  in 
the  act  of  March  18,  1861,  (Statutes  of  1861,  page  545,) 
amendatory  of  the  San  Francisco  Consolidation  Act,  it  is  evi- 
dent from  the  context  that  the  word  "termination"  is  used 
to  designate  the  line  A  B  in  the  diagram.  In  section  3  of 
this  act  of  March  18,  1861,  it  is  provided  that  "where  a 
main  street  terminates  at  right  angles  in  another  main 
street  the  expense  of  the  construction  of  one-half  of  the 
width  of  the  street,  at  the  termination,  shall  be  assessed 
upon  the  lots  in  each  of  the  two  quarter  blocks  adjoining  and 
cornering  on  the  same,  according  to  the  frontage  of  such 
lots  on  said  main  streets,  and  the  other  half  upon  the  lots 
fronting  on  the  street  opposite  such  termination." 

SUBDIVISION    8    OF    SECTION    SEVEN. 

Subdivision  8.  Subdivision  10  of  section  8  of  the  San 
Francisco  street  work  act  of  1872  is  the  subdivision 
which  corresponds  with  subdivision  8  of  section  7,  supra, 
although  the  two  are  not  identical  in  language.  In 
Diggins  v.  Brown,  76  Cal.  318,  this  subdivision  of  section  8 
of  the  act  of  1872  was  construed,  and  it  was  held  that  it 
did  not  provide  that  each  lot  should  pay  for  the  work  done 
in  front  of  it,  but  that  the  cost  of  the  work  done  on  one 
side  of  a  street  should  be  apportioned  to  all  the  lots  on  that 
side  fronting  on  the  work;  that,  therefore,  when  the  board 
of  supervisors  order  "that  plank  sidewalks  be  constructed  on 
Olive  avenue,  between  Lagunaand  Buchanan  streets,  where 
not  already  constructed,  and  that  the  roadway  be  macada- 
mized where  not  already  done."  the  lots  to  be  assessed  are 
all  the  lots  on  each  side  of  the  street  in  the  block  between 
Laguna  and  Buchanan  streets,  and  the  cost  of  the  work  on 


84  STREET  WORK  LAW — STREET   IMPROVEMENT   ACT 

one  side  of  the  street  must  be  distributed  against  all  of  the 
lots  on  that  side  of  the  street  in  said  block,  even  though  no 
work  be  done  in  front  of  some  one  or  more  of  them,  and 
if  any  lot  be  omitted  because  no  work  was  done  in  front 
of  it,  the  assessment  is  void.  However,  the  language  of 
subdivision  8  of  section  seven  of  the  present  street  work  act 
differs  so  much  from  the  language  of  subdivision  10  of  sec- 
tion 8  of  the  act  of  1872,  that  Diggins  v.  Brown  can  hardly 
be  regarded  as  an  authority  in  the  construction  of  the 
present  act.  Still,  if  the  legislature  did,  by  subdivision  8  of 
section  seven  of  the  present  act,  intend  to  impose  upon  each 
lot  the  whole  cost  of  doing  the  particular  portion  of  the 
work  upon  which  each  lot  fronts,  then  as  stated  in  Diggins 
v.  Brown,  "the  method  of  assessing  each  lot  for  the  work 
done  in  front  of  it  has  been  condemned  by  high  authority," 
and  consequently,  such  an  intention  is  not  to  be  imputed  to 
the  legislature,  if  the  subdivision  is  capable  of  a  construc- 
tion consonant  with  the  requirements  of  the  constitution. 

SUBDIVISION    9    OF    SECTION    SEVEN. 

Subdivision  9.  Why  this  provision  was  inserted  in 
the  act  is  inexplicable,  save  upon  the  theory  that  the 
act  was,  in  a  great  measure,  copied  from  former  San 
Francisco  street  work  acts,  and  copyists  sometimes  blindly 
copy  without  any  other  reason  than  that  the  provision  is  in 
the  statute  from  which  the  copy  is  taken.  The  legislature 
of  1857  passed  a  general  revenue  act,  entitled  "An  act  to 
provide  revenue  for  the  support  of  the  government  of  this 
state,"  [Statutes  of  1857,  page  325,]  and  the  legislature  of 
1859  passed  an  act  to  amend  this  general  revenue  act, 
entitled  "An  act  amendatory  of  and  supplementary  to  an  act 
to  provide  revenue  for  the  support  of  the  government,  of 
this  state,  approved  April  twenty-ninth,  eighteen  hundred 
and  fifty-seven."  [Statutes  1859,  page  343.]  The  pro- 
visions of  this  latter  act  are  expressly  confined  to  the 
city  and  county  of  San  Francisco.  Subdivision  12  of  the  San 
Francisco  street  work  act  of  1863  [Statutes  1863,  pages  396-7,] 
is  the  same  as  subdivision  9  of  section  7  of  the  present 
general  street  work  act,  and  it  seems  to  have  been  need- 
lessly copied  into  the  present  street  \vork  act. 

SECTION  8.  After  the  contractor  of  any  street  work  has  fulfilled  his  con- 
tract to  the  satisfaction  of  the  street  superintendent  of  said  city,  or  city 
council  on  appeal,  the  street  superintendent  shall  make  an  assessment  to 
cover  the  sum  due  for  the  work  performed  and  specified  in  said  contract 
(including  any  incidental  expenses),  in  conformity  with  the  provisions  of 
the  preceding  section  according  to  the  character  of  the  work  done ;  or,  if 
any  direction  and  decision  be  given  by  said  council  on  appeal,  then  in 


SECTION    EIGHT    OP    THE    ACT  **        85 


conformity  with  such  direction  and  decision,  which  assessment  shall  briefly 
refer  to  the  contract,  the  work  contracted  for  and  performed,  and  shall 
show  the  amount  to  be  paid  therefor,  together  with  ary  incidental 
expenses,  the  rate  per  front  foot  assessed,  if  the  assessment  be  made  per 
front  foot,  the  amount  of  each  assessment,  the  name  of  the  owner  of  each 
lot,  or  portion  of  a  lot  (if  known  to  the  street  superintendent)  ;  if  unknown 
the  word  "unknown"  shall  be  written  opposite  the  number  of  the  lot,  and 
the  amount  assessed  thereon,  the  number  of  each  lot  or  portion  or  portions 
of  a  lot  assessed,  and  shall  have  attached  thereto  a  diagram  exhibiting 
each  street  or  street  crossing,  lane,  alley,  place,  or  court,  on  which  any 
work  has  been  done,  and  showing  the  relative  location  of  each  district,  lot 
or  portion  of  lot  to  the  work  done,  numbered  to  correspond  with  the  num- 
bers in  the  assessments,  and  showing  the  number  of  feet  fronting,  or 
number  of  lots  assessed,  for  said  work  contracted  for  and  performed. 
[Ainemlim-nf  nppi-nml  .'\r<il-rh  //,,  1889.  Statutes  1889,  p.  166.] 
[Section  8  was  amended  in  1889  by  act  of  March  14,  1889,  statutes  1889, 

p.  n>(5.] 

Section  8  of  the  act  prescribes  the/orw  of  the  assessment. 
This  section  provides:  (1.)  That  the  assessment  shall  be  made 
by  the  superintendent  of  streets  only  after  the  contractor  has 
fulfilled  his  contract  to  the  satisfaction  of  the  street  super- 
intendent. (#.)  That  it  shall  be  made  in  conformity  with 
the  provisions  of  the  preceding  section  [Sec.  7]  according 
to  the  character  of  the  work  done,  i.e.  the  assessment  shall 
be  made  against  the  particular  property  which  is  made 
liable  by  section  7  of  the  act,  and  it  shall  be  made  by  the 
street  superintendent  alone,  unless  any  direction  or  decis- 
ion be  given  b}  the  council  on  appeal,  in  which  case  the  street 
superintendent  shall  make  the  assessment  in  conformity 
with  such  direction  and  decision,  and  (3.)  That  the  assess- 
ment shall  contain  eight  provisions,  viz,  (a.)  a  brief  refer- 
ence to  the  contract;  (b.)  a  brief  reference  to  the  work 
contracted  for  and  performed;  (c.)  it  shall  show  the  amount 
to  be  paid  for  the  work,  together  with  any  incidental 
expenses;  (d.)  the  rate  per  front  foot  assessed  —  if  the 
assessment  be  made  per  front  foot;  (e.)  the  amount  of  each 
assessment;  (/.)  the  name  of  the  owner  of  each  lot,  or  por- 
tion of  lot  —  if  known  to  the  street  superintendent  —  or,  if 
unknown,  the  word  "unknown"  shall  be  written  opposite 
the  number  of  the  lot;  (g.)  the  amount  assessed  upon  each 
such  lot  or  portion  of  a  lot,  and  (h.)  the  number  of  each 
lot  or  portion  or  portions  of  a  lot  assessed.  (4-)  The 
section  likewise  provides  for  a  diagram  to  be  attached 
to  the  assessment.  This  diagram  shall  show  (a.)  each 
street  or  street  crossing,  lane,  alley,  place,  or  court, 
on  which  any  work  has  been  done;  (6.)  the  relative  loca- 
tion of  each  district,  lot  or  portion  of  lot  to  the  work  done: 
(c.)  the  lots  and  portions  of  lots  shall  be  numbered  on  the 


86      STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

diagram  to  correspond  with  the  numbers  in  the  assessment; 
(d,)  the  diagram  shall  show  the  number  of  feet  fronting, 
or  number  of  lots  assessed,  for  the  work  contracted  for  and 
performed. 

The  section  provides  that  "the  assessment  shall  cover  the 
sum  due  for  the  work  performed  and  specified  in  said  con- 
tract (including  any  incidental  expenses)."  See  subdi- 
vision 3  of  section  34  and  section  35  for  a  definition  or 
enumeration  of  the  things  embraced  by  the  term  "incidental 
expenses." 

I.  Contract  Fulfilled  to  Satisfaction  of  Superintendent. 
The  superintendent  of  streets  is  only  authorized  to  make 
an  assessment  after  the  contractor  has  fulfilled  his  con- 
tract "to  the  satisfaction  of  the  street  superintendent,"  so 
that  when  the  superintendent  makes  an  assessment  he,  in 
so  doing,  necessarily  determines  that  the  contract  has  been 
performed  to  his  satisfaction.  His  dbtermination  in  this 
respect  is  final  and  conclusive,  except  upon  an  appeal  to 
the  council.  An  error  by  the  superintendent  in  determining 
whether  the  contractor  has  properly  fulfilled  his  contract 
is  not  a  jurisdictional  defect,  and  therefore,  the  only  remedy 
of  a  lot  owner,  dissatisfied  with  the  decision  of  the  super- 
intendent of  streets  that  the  contractor  has  fulfilled  his 
contract,  is  an  appeal  from  such  decision  to  the  council,  as 
provided  for  by  section  11  of  the  act.  [Emery  v.  Bradford, 
29  Cal.  75;  Shepard  v.  McNeil,  38  Cal.  72;  Fanning  v. 
Leviston,  93  Cal.  186;  Jennings  v.  LeBreton,  80  Cal.  8,  11.] 

"The  law  does  not  prescribe  any  particular  mode  or  form 
in  which  the  superintendent  shall  manifest  his  approval  or 
acceptance  of  the  work  done  under  a  street  contract,  nor 
does  it  require  the  approval  to  be  expressed  in  writing.  As 
the  assessment  and  warrant  attached  thereto  are  not  to  be 
made  or  given  until  'after  the  contractor  of  any  street  work 
has  fulfilled  his  contract  to  the  satisfaction  of  the  superin- 
tendent,' the  assessment  and  warrant  in  due  form  are  cer- 
tainly prima facie  evidence  that  the  work  was  completed  to 
the  satisfaction  of  the  superintendent,  and  that  he  approved 
and  accepted  the  same."  [Jenning  v.  LeBreton,  80  Cal.  8.] 

The  superintendent  may  approve  the  work  without  per- 
sonal inspection,  and  proof  of  lack  of  personal  inspection 
by  him  does  not  overcome  the  proof  of  acceptance  from 
certificates  showing  that  the  work  was  completed  according 
to  contract,  taken  in  connection  with  the  personal  making 
and  signing  of  the  assessment  diagram  and  warrant  by  the 
superintendent.  [Jennings  v.  Le  Breton,  supra.  See  Brady 
v.  Bartlett,  56  Cal.  350.J 


ASSESSMENT     AFTER    WORK    BONE  h'**1       87 


II.  Assessment  Made  after  Fulfillment  of  Contract.  Sec- 
tion 19  of  article  11  of  the  new  constitution,  as  originally 
adopted,  provided  that  no  contract  should  be  let  for  do- 
ing any  street  work  until  after  an  assessment,  in  proportion 
to  the  benefits  on  the  property  to  be  affected  or  benefited, 
should  have  been  levied,  collected  and  paid  into  the  city 
treasury.  Prior  to  this  constitutional  provision,  most  of  the 
street  work  acts  provided,  as  does  'the  present  street  work 
act,  —  section  8,  supra,  —  that  the  assessment  should  be  made 
by  the  superintendent  of  streets  after  the  contract  had  been 
fulfilled  to  his  satisfaction.  Thus  the  act  of  1872,  providing 
for  street  improvements  in  Sun  Francisco,  authorized  the 
superintendent  of  streets  to  execute  contracts  for  such 
improvements  in  advance  of  the  levy  and  collection  of  the 
assessment,  instead  of  afterwards,  as  required  by  section  19 
of  acticle  11  of  the  new  constitution,  prior  to  its  amend- 
ment in  1884,  just  as  section  8  of  the  present  street  work 
act,  —  act  of  March  18,  1885,  —  requires  the  contract  to 
be  let  and  the  work  to  be  done  in  advance  of  the  levy  and 
collection  of  the  assessment. 

In  McDonald  •".  Patterson,  54  Cal.  245,  it  was  held  that 
section  19  of  acticle  11  of  the  new  constitution,  as  it  then 
stood,  was  not  a  provision  which  required  legislation  to 
enforce  it,  and  that  the  provisions  of  the  act  of  April  1, 
1872,  relating  to  street  improvements  in  San  Francisco, 
which  authorize  the  superintendent  of  streets  to  execute 
contracts  for  such  improvements  —  in  advance  of  the  levy 
and  collection  of  the  assessment  —  were  inconsistent  with 
said  section  of  the  constitution,  and  ceased  to  be  operative 
on  the  1st  day  of  January,  1880,  when  the  new  constitution 
went  into  effect.  This  ruling  was  followed  in  Donahue  v. 
(irnham,  61  Cal.  276. 

The  legislature,  at  its  regular  session  in  1883,  proposed 
an  amendment  to  said  section  19  of  article  11  of  the  constitu- 
tion, wiping  out  all  of  that  portion  of  the  section  relating  to 
assessments  to  pay  for  street  improvements.  This  amend- 
ment was  ratified  by  the  people  at  the  general  election  in 
1884,  so  that,  if  this  amendment  of  1884  to  section  19  of  arti- 
cle 11  of  the  constitution  was  properly  submitted,  and  ratified 
by  the  people,  street  work  acts,  since  then,  may  provide  for 
assessments  after  the  letting  of  the  contract  and  the  perform- 
ance of  the  work,  or  in  advance  thereof. 

The  legislature,  at  its  regular  session  in  1883,  for  the  pur- 
pose of  enacting  a  statute  which  should  conform  to  the  pro- 
visions of  said  section  19  of  article  11  of  the  constitution,  as  it 
then  stood,  passed  the  act  known  as  the  Vrooman  act,  en- 
titled "An  act  to  provide  for  the  improvement  of  streets, 


88      STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

lanes,  alleys,  courts,  places  and  sidewalks,  and  the  construc- 
tion of  sewers  within  municipalities," — approved  March  6, 
1883.  [Statutes.  1883,  p.  32.]  This  act  provided  for  the  levy 
and  collection  of  the  assessment  hefore  the  letting  of  any 
contract. 

In  1 885,  the  legislature  at  its  regular  session  in  that  year, 
passed  the  general  street  work  act — the  act  of  March  18, 
1885 — which,  with  the  subsequent  amendatory  acts,  is  the 
statute  now  in  force.  This  act  was  passed  after  the  adoption 
and  ratification  of  the  said  amendment  to  the  constitution, 
eliminating  said  restriction  upon  the  right  of  assessment. 

In  People  v.  Strother,  67  Gal.  624,  it  was  held  that  the  said 
amendment  of  1884  to  said  section  19  of  article  11  of  the  con- 
stitution was  properly  adopted.  Subsequently,  in  the  case 
of  Oakland  Paving  Company  v.  Hilton,  69  Cal.  479,  an 
opinion  was  rendered  by  Mr.  Justice  Thornton,  concurred 
in  by  Mr.  Justice  McKee,  holding  that  the  said  proposed  con- 
stitutional amendment  was  never  properly  submitted  to  the 
people  for  ratification  and  adoption,  because  it  was  not 
entered  at  large  in  the  journals  of  the  two  houses  of  the 
legislature,  and  that  therefore  the  provision  of  section  1  of 
article  18  of  the  constitution,  prescribing  the  mode  by  which 
the  constitution  shall  be  amended,  was  not  complied  with. 

In  Oakland  Paving  Company  v.  Tompkins,  72  Cal.  5,  it 
was  held, — Mr.  Justice  Thornton  only  dissenting — that  the 
said  proposed  amendment  to  the  constitution  was  properly 
entered  in  the  journals  of  the  two  houses  of  the  legislature 
and  that  the  amendment  to  the  constitution  was  properly 
adopted. 

In  Thomason  v.  Ashworth,  73  Cal.  73,  the  ruling  of  the 
court  in  Oakland  Paving  Company  v.  Tompkins,  was 
affirmed. 

It  has,  therefore,  now  become  a  settled  proposition  that 
under  the  constitution  as  it  now  stands,  the  superintendent 
of  streets  may  make  an  assessment  after  the  contract  has 
been  fulfilled  to  his  satisfaction.  In  the  case  of  Thomason 
v.  Ashworth,  supra,  it  was  likewise  held,  (1.)  That  the  act 
of  1872,  providing  for  the  improvement  of  streets  in  San 
Francisco,  in  so  far  as  it  authorized  a  contract  to  be  entered 
into  in  advance  of  the  assessment  and  collection  of  the 
money  to  be  paid  for  the  work  done  under  it,  was  repealed 
by  said  section  19  of  acticle  XI  of  the  constitution  of  1879; 
(I?.)  that  it  was  afterwards  entirely  repealed  by  the  said  act  of 
March  6,  1883,  and  (3.)  that  this  latter  act  was  repealed  by 
the  act  of  March  18,  1885 — the  act  now  in  force. 

III.  Street  Superintendent  to  Make  Assessment  in  Conformity 
with  the  Provisions  of  Section  7.  Section  8  of  the  act  provides 


SMKNT  TO  CONFORM  WITH   SETION  SEVEN    SSSr4*14,^8WMl8d    89 

that  the  assessment  shall  be  made  in  conformity  with  the 
provisions  of  the  preceding  section— section  7 — according 
to  the  character  of  the  work  done,  unless  any  direction  or 
decision  be  given  by  the  council  on  appeal,  in  which  case 
the  street  superintendent  shall  make  the  assessment  in  con- 
formity with  such  direction  and  decision. 

Therefore  the  assessment,  is,  in  the  first  instance,  to  be 
made  by  the  superintendent  acting  upon  his  own  judgment, 
and,  unless  the  council,  in  its  resolution  of  intention,  lias 
declared  that  the  costs  and  expenses  of  the  work  are  to  be 
assessed  upon  a  district,  the  superintendent  shall  make 
the?  assessment  upon  the  lots  and  lands  according  to 
the  front-foot  plan  of  assessing,  the  expense  being 
assessed  at  a  uniform  rate  per  front-foot,  .as  provided  in 
section  seven.  If  the  resolution  of  intention  declares  that 
the  cost  and  expenses  are  to  be  assessed  upon  a  district,  the 
superintendent  of  streets,  after  the  contractor  has  fulfilled 
his  contract  to  the  satisfaction  of  the  superintendent  or  of 
the  council  on  appeal,  must  proceed  to  estimate  upon  the 
lands,  lots,  or  portions  of  lots  within  the  assessment  district, 
the  benefits  arising  from  the  work,  and  must  assess  upon 
all  pieces,  parcels,  lots  or  portions  of  lots  in  said  district, 
the  total  amount  of  the  cost  and  expense — assessing  upon 
each  piece,  parcel,  lot  or  portion  of  a  lot,  such  proportion 
of  the  total  amount  of  the  expenses  and  cost  as  is  propor- 
tionate to  the  estimated  benefits  received  by  it. 

In  either  of  the  above  cases,  that  is,  whether  the  front- 
foot  plan  or  the  district  assessment  plan  be  the  mode  adopt- 
ed, the  assessment  must,  in  the  first  instance,  be  made  by 
the  street  superintendent  acting  upon  his  own  judgment. 
In  the  one  case  he  determines  the  rate  of  assessment  per 
front  foot  to  be  assessed  upon  the  lots  according  to  the  front- 
foot  plan,  in  the  other  case  he  estimates  the  benefits  to  be 
received  by  the  lots  and  parcels  of  land  within  the  assess- 
ment district,  and  assesses  against  each  lot  and  parcel  of 
land  such  an  amount  of  the  total  cost  and  expenses  as  is 
proportionate  to  the  benefit  received  by  it.  In  either  case 
hia  decision  is  final  and  conclusive,  except  upon  appeal  to 
the  council.  If  a  property  owner  appeal  to  the  council,  as 
provided  for  by  section  11  of  the  act,  the  council  may 
change  the  assessment,  and  in  such  case  the  street  superin- 
tendent must  make  the  assessment  in  conformity  with  the 
council's  direction  and  decision.  For  example,  a  property 
owner  may  deem  the  benefit  actually  received  by  his  land, 
when  the  district  assessment  plan  has  been  adopted  by  the 


90     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

council  in  its  resolution  of  intention,  to  be  less  than  the 
amount  estimated  by  the  street  superintendent.  In  such 
case  the  owner  may  appeal  to  the  council,  and  the  council 
may,  if  it  agree  with  the  property  owner's  contention,  decide 
that  the  benefit  received  by  the  lot  is  less  than  that  esti- 
mated by  the  superintendent  of  streets.  In  such  case  the 
superintendent  must  make  the  assessment  in  conformity 
with  the  direction  and  decision  of  the  council. 

IV.  Form  of  Assessment  Roll  and  How  Made.  Section 
8  requires  the  assessment  to  contain  eight  provisions, 
enumerated,  supra,  page  85,  and  likewise  a  diagram 
showing  four  things.  Some,  at  least,  of  these  requirements, 
i.  e.  the  things  which  the  assessment  and  diagram  must  show, 
affect  substantial  rights,  and,  therefore,  must  be  complied 
with  as  required  by  the  act;  [Smith  v.  Cofran,  34  Gal. 
316.]  For  example,  the  requirement  that  the  assess- 
ment shall  show  the  name  of  the  owner,  if  known  to  the 
superintendent,  or,  if  unknown,  the  word  "unknown" 
written  oppoeite  the  number  of  the  lot.  And,  as  the  prop- 
erty owner  has  a  constitutional  right  to  receive  notice  that 
his  property  has  been  assessed,  and  as  the  assessment  ma}7 
be  'made  against  him  by  the  words  "owner  unknown,"  it 
follows  also  that  the  assessment  should  contain  a  description 
of  the  property  sufficient  to  impart  notice  to  the  owner. 
[See  Blackwell  on  Tax  Titles,  section  223,  et  seq.;  Desty  on 
Taxation,  Vol.  II,  page  1329;  Sharpe  v.  Johnson,  4  Hill,  92.] 
"The  identity  of  the  lot  assessed,  and  not  the  person  who 
may  be  the  owner,  is  made  the  essential  requirement  of 
the  statute,  the  first  must  be  specifically  described,  while  the 
latter  may  be  designated  as 'unknown.' '  [Gillis  v.  Cleve- 
land, 87  Cal.  217.] 

(a.)  Name  of  Owner  if  Known,  if  not  to  Owner  Unknown. 
The  assessment  must  be  made  against  the  true  owner 
either  by  name  or  by  the  designation  of  "unknown,"  as  pro- 
vided in  the  statute.  If  not  made  against  the  true  owner  by 
name  or  by  the  designation  "unknown,"  it  creates  no  liabil- 
ity against  the  land  or  against  the  true  owner  or  against 
the  person  in  whose  name  it  is  erroneously  made.  The 
assessment  must  be  made  against  the  true  owner,  if  known 
to  the  superintendent  of  streets,  and  if  not  known  the 
word  "unknown"  must  be  written  opposite  the  number  of 
the  lot  and  the  amount  of  the  assessment.  Therefore,  if 
the  assessment  be  against  a  deceased  person,  it  is  void. 
[Smith  v  Davis,  30  Cal.  537;  see  Taylor  v.  Donner,  31  CaL 
481;  Mayo  v.  Ah  Loy,  32  Cal.  477.]  And  no  person  can  be 
made  to  pay  an  assessment,  even  if  he  is  the  owner  of  a  lot 
in  the  assessment  district,  unless  the  assessment  has  been 


FORM    OF    ASSESSMENT  S^^iSS"1"1*1       91 


Mar.  14,  1881). 


against  him  by  name  or  by  the  designation  "unknown. " 
[Blatner  v.  Davis,  32  Cal.  328.]  It  is  the  duty  of  the 
superintendent  of  streets,  if,  upon  reasonable  inquiry,  he 
entertains  doubts  about  the  ownership  of  property  to 
be  affected  by  the  assessment,  to  assess  it  to  "owners 
unknown"  [Himmelmann  v.  Steiner,  38  Cal.  175],  and  an 
assessment  to  "unknown  owners,"  made  by  the  superin- 
tendent of  streets,  amounts  to  an  official  certificate  by  the 
proper  officer,  that  the  owner  of  the  particular  lot  desig- 
nated was  unknown  to  him.  The  certificate  is  conclusive 
of  the  truth  of  the  fact  certified,  and  cannot  be  called  in 
question  in  an  action  brought  upon  the  assessment. 
[Chambers  v.  Satterlee,  40  Cal.  498,  518.]  Section  8  of  the 
act  prescribes  what  an  assessment  shall  showT,  and,  among 
other  things,  that  it  "shall  show  *  *  *  the  name  of  the 
owner  of  each  lot,  or  portion  of  a  lot  (if  known  to  the 
street  superintendent);  if  unknown  the  word  'unknown' 
shall  be  written  opposite  the  number  of  the  lot,"  etc.  And 
in  Smith  r.  Cofran,  34  Cal.  316-317,it  was  said:  "There  is  no 
authority  for  making  an  assessment  that  does  not  embrace 
these  essentials.  There  is  no  authority  to  make  an  assessment 
strictly  in  rem  without  reference  to  owners,  either  known  or 
unknown, or  an  assessment  that  shall  effect  the  interest  of  any 
party,  unless  designated  in -the  assessment  by  name,  or,  if 
unknown,  it  be  so  expressly  stated."  In  Himmelmann  v. 
Steiner,  supra,  it  was  held  that  the  assessment  by  the 
superintendent  of  streets  to  the  defendant  as  an  "owner 
unknown"  was  conclusive  of  the  fact  that  the  owner  was 
unknown  to  the  superintendent,  even  though  the  premises 
stood  of  record  in  the  name  of  the  defendant  all  the  time, 
and  was  substantially  enclosed,  with  a  dwelling  house 
thereon,  occupied  by  defendant.  [See  also  Hewes  v.  Reis, 
40  Cal.  2,",.] 

In  Himmelmann  r.  Hoadley,  44  Cal.  227,  it  was  said: 
"According  to  the  repeated  constructions  of  the  statute,  the 
superintendent,  unless  he  is  satisfied  beyond  all  doubt  as  to 
the  ownership  of  a  lot,  may  assess  it  to  'unknown'  owner; 
and  it  is  almost,  if  not  quite,  impossible  to  showr  that  he 
did  not  know  the  owner."  Consequently  the  safest  course  is 
to  assess  all  lots  to  owners  "unknown."  For,  if  assessed  to 
the  owner  in  his  name,  it  must  be  assessed  to  the  true 
owner,  and  as  this  is  almost  always  a  matter  of  doubt  the 
only  safe  course  is  for  the  superintendent  to  avail  himself 
of  the  alternative  allowed  by  the  statute  arid  assess  to 
"owner  unknown." 

It  will  be  a  great  advantage  to  the  contractor  if  the 
assessment  is  in  every  case  assessed  to  unknown  owners, 


92     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

since,  in  that  case,  under  the  provisions  of  section  10  of  the 
act,  the  "demand"  need  not  be  made  upon  the  owner  in  per- 
son or  his  agent,  but  may  be  made  upon  the  premises. 

An  assessment  to  "Shubal  Dunham  and  unknown"  is  void, 
likewise  an  assessment  to  "S.  Dunham  or  unknown." 
[City  of  Stockton  v.  Dunham,  59  Cal.  608;  Same  v.  Same, 
59  Cal.  609.]  The  assessment  must  be  against  the  owner  in 
his  true  name  alone,  or  against  him  simply  as  an  "owner 
unknown." 

If  the  property  belongs  to  tenants  in  common,  it  should 
be  assessed  to  them  jointly.  [Blatner  v.  Davis,  32  Cal.  331.] 

(b.)  The  assessment  may  be  made  upon  a  gold  basis  and 
collected  in  gold  coin.  [Baudry  f.Valdez,  32  Cal.  270.] 

(c.)  Attestation  of  Assessment.  The  assessment  when  made 
must  he  attested  by  the  official  signature  of  the  street  super- 
intendent. Without  such  signature  it  is  not  an  official 
document,  and  this,  even  thougli  the  statute  does  not 
expressly  require  the  assessment  to  be  thus  attested,  and  it 
cannot  be  helped  out  by  the  signature  to  the  warrant  and 
diagram.  [Dougherty  v.  Hitchcock,  35  Cal.  512.] 

(d.)  Time  Within  which  to  make  Assessment  and  Re-assess- 
ment. No  time  is  limited  within  which  the  assessment 
must  be  made,  although  it  is  the  duty  of  the  street  superin- 
tendent to  make  it  immediately  after  the  fulfilment  of  the 
of  the  contract  to  his  satisfaction.  Nor  is  the  fact  that  a 
void  assessment  has  been  already  made,  any  excuse  for  not 
making  a  valid  one  and  he  may  be  compelled  by  mandamus 
to  do  so.  [Himmelmann  v.  Cofran,  36  Cal.  411.]  And  if 
the  first  assessment  is  invalid  for  failure  to  authenticate  his 
record  by  his  official  signature,  it  is  his  duty  afterward  to 
make  a  valid  assessment.  [Shepard  v.  McNeil,  38  Cal.  73.] 
See  also  section  9  of  the  act,  infra,  where  provision  is 
expressly  made  for  a  second  assessment  in  case  the  first  be 
adjudged  invalid.  But  if  the  first  assessment  is  valid  the 
contractor  cannot  compel  a  second  one  to  be  made. 
[Frick  v.  Morford,  87  Cal.  576.]  Where,  in  an  action  to 
recover  the  amount  of  the  assessment,  the  property  owners 
set  up  that  the  assessment  is  void  and  it  is  not,  but  the  court 
erroneously  holds  that  it  is,  the  property  owners  are 
estopped  to  deny  the  authority  of  the  street  superintendent 
to  make  a  second  assessment.  [Dyer  v.  Scalmanini,  69  Cal. 
637.] 

(e.)  Description  of  Property.  An  assessment  giving  the 
number  and  frontage  of  lots,  arid  referring  to  the  diagram 
for  further  description,  sufficiently  describes  the  property  to 
be  assessed.  [Hewes  v.  Reis,  40  Cal.  255;  Ede  v.  Knight,  93 
Cal.  159,  163.] 


DESCRIPTION  OF  PROPERTY  ASSESSED         SS&VffiS?^4        93 


March  14,  1889. 


But  the  assessment  and  diagram  when  taken  together 
must  intelligibly  describe  the  property.  And,  if  the  dia- 
gram is  referred  to  for  a  description,  it  must  contain 
such  a  description  or  such  references  as  will  enable  the 
description  of  the  premises  to  be  understood.  If  the 
description  is  confined  to  the  diagram,  it  will  be  insufficient 
if  there  be  nothing  on  the  diagram  to  show  the  points  of 
the  compass  and  locality  of  the  streets.  [Himmelmann  v. 
Calm,  49  Oal.  285;  San  Francisco  v.  Quackenbush,  53  Cal. 
52.]  However,  it  is  not  necessary  that  the  letters  N  and  S, 
to  indicate  the  points  of  the  compass,  north  and  south 
respectively,  should  be  used.  If  an  arrow  is  used,  its  barb 
alone  is  competent  without  the  letter  N  to  denote  north  on 
the  diagram, and  the  point  of  a  scroll  is  as  competent,  as  the 
barb  of  an  arrow  to  denote  north  on  a  map  or  diagram. 
[Whiting  v.  Quackenbush,  54  Cal.  306;  Williams  v.  McDon- 
ald, 58  Oal.  527.]  The  assessment  is  void  if  it  does  not 
show  the  dimensions  of  the  lot.  [Himmelmann  v.Bateman, 
50  Cal.  11.] 

But  it  will  be  sufficient  if  the  dimensions  of  two  of  the 
side  lines  only  are  shown,  if  the  map  show  that  the  figure  is 
a  rectangle,  so  that  the  dimensions  of  the  lot  may  be 
ascertained  from  a  knowledge  of  the  dimensions  of  the  two 
side  lines.  [Whiting  v.  Quackenbush,  supra."]  The  assess- 
ment is  insufficient  if  it  fail  to  show  on  what  side  of  the 
street  the  lot  is.  [San  Francisco  v.  Quackenbush,  53  Cal. 
52.] 

If  the  assessment  describe  the  lot  by  metes  and  bounds,  it 
will  be  sufficient  even  if  the  diagram  does  not  indicate  the 
course  of  the  streets  by  an  arrow  or  a  scroll,  as  the  courts 
will  take  judicial  notice  of  the  streets  and  of  their  relation 
to  each  other,  and  of  the  directions  in  which  they  run. 
[Brady  v.  Page,  59  Cal.  52,  301;  Williams  v.  Savings  & 
L.  Soc.,  97  Cal.  122.] 

The  venue  in  the  caption  of  the  assessment  is  sufficient 
to  show  that  the  property  sought  to  be  charged  is  within 
the  city  within  which  the  improvement  was  made,  and  that 
the  street  superintendent  of  such  city  has  jurisdiction  to 
make  the  assessment.  [Whiting  v.  Quackenbush,  supra.] 

If  the  assessment  number  a  small  stieet  running  at  right 
angles  to  the  street  upon  which  the  work  was  done  and 
terminating  therein,  also  designating  such  small,  terminat- 
ing street  by  its  name,  referring  to  it  as  a  lot  having  a 
frontage  upon  the  main  street  equal  to  its  width,  and 
charging  it  with  a  certain  amount  as  its  proportion  of  the 
cost  of  the  work,  this  will  not  invalidate  the  assessment. 
It  will  be  considered  merely  as  a  mode  of  distributing  the 


94     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

cost  of  the  work  as  between  the  lots  liable  therefor.  [Dyer 
v.  Martinovich,  63  Cal.  353. 

The  assessment  and  diagram,  as  recorded,  must  contain  a 
sufficient  description  of  the  lot,  and  must  not  vary 
materially  from  the  diagram  attached  to  the  original  assess- 
ment. [Norton  v.  Courtney,  53  Cal.  691.] 

V.     Rem.edy  for  Irregularities  in  Assessment. 

(a.)  Appeal  by  Lot  Owner.  According  to  the  require- 
ments of  section  8  of  the  act,  the  assessment  must  show  and 
contain  certain  things.  It  might  be  difficult  to  draw  the 
line  of  demarkation  in  particular  cases  so  as  to  clearly 
determine  when  a  failure  of  the  assessment  roll  to  show 
these  things,  or  an  irregularity  in  showing  them,  operates  to 
render  the  assessment  wholly  void,  and  when  it  is  merely 
an  irregularity  to  be  corrected  on  appeal.  One  of  the  ques- 
tions in  each  particular  case  is:  Does  the  alleged  irregu- 
larity affect  substantial  rights?  If  substantial  rights 
are  not  affected,  then  such  appeal  is  probably  the  only 
remedy  of  the  aggrieved  property  owner.  In  Dehail  v. 
Morford,  95  Cal.  460,  Mr.  Justice  Harrison  said:  "After  the 
jurisdiction  has  once  been  acquired,  subsequent  proceedings 
can  be  attacked  for  only  such  irregularities  as  affect  sub- 
stantial rights."  It  has  been  decided  that  a  failure 
to  make  the  assessment  against  the  true  owner,  either 
by  his  name  or  by  the  designation  "  unknown,"  is  a  failure 
in  respect  to  a  "  substantial  right/'  and  that  therefore  the 
owner  need  not  appeal  to  the  council,  but  may  attack  the 
assessment  in  an  action  against  him.  Or  rather,  it  has  been 
decided  that  in  such  case  the  owner  is  not  a  party  to  the 
assessment  at  all,  and  one  not  a  party  to  the  assessment  in 
one  of  the  modes  designated  by  the  statute,  i.  e.  either  as 
owner  in  his  true  name,  or  by  the  designation,  "unknown," 
is  not  affected  by  it;  he  is  a  stranger  to  it,  and  not  "aggriev- 
ed," and  those  only  can  be  concluded  by  the  decision  of  the 
council,  on  appeal,  who  have  been  made  parties  to  the 
assessment  in  one  of  said  modes.  [Smith  v.  Cofran,34  Cal. 
316;  opinion  of  Mr.  Justice  Sawyer  on  petition  for  rehearing.] 
The  same  result  might  also  follow  where  the  assessment 
is  to  "owner  unknown,"  and  fails  to  describe  the 
land  so  as  to  give  sufficient  notice  to  the  owner 
that  his  lot  had  been  assessed.  [See  authorities  supra 
on  "  description  of  property."]  A  description  suf- 
ficient to  give  notice  to  the  taxpayer  that  his 
land  is  assessed  is  an  essential  which  the  legislature  cannot 
dispense  with,  nor  work  a  cure  upon  any  proceedings  defec- 
tive in  that  regard.  [Blackwell  on  Tax  Titles,  section  223 


APPEAL    BY    LOT    OWNER  SSi^/iS?*0*       95 


March  14,  1889. 


et  seq.;  Desty  on  Taxation,  Vol.  II,  p.  1329;  Sharpe  v.  John- 
son, 4  Hill  92.] 

We  have  said  that  one  of  the  questions  in  each  particular 
case  is:  Does  the  alleged  irregularity  affect  substantial 
rights?  But  this  we  believe  is  not  decisive  of  the  question 
as  to  whether  the  irregularity  is  one  which  may  be  cor- 
rected on  appeal  or  not.  For,  while  it  is  probable  that  if 
substantial  rights  are  not  affected  bv  the  alleged  irregularity, 
an  appeal  to  the  council  is  the  only  remedy  of  the  aggrieved 
property  owner,  [See  language  of  Mr.  Justice  Harrison  in 
Dehail  v.  Morford,  quoted  supra,"]  it  does  not  therefore  fol- 
low that  an  appeal  to  the  council  is  not  the  sole  remedy,  if 
substantial  rights  are  affected  by  irregularities  in  the 
assessment.  Thus,  if  a  lot,  liable  to  assessment,  be  omitted 
from  the  assessment  roll,  the  substantial  rights  of  those 
whose  property  is  assessed,  are  certainly  affected  thereby. 
[People  v.  Lynch,  51  Cal.  19;  Diggins  v.  Brown,  76Cal.  318; 
Davies  v.  Los  Angeles,  86  Cal.  IT:  Moulton  v.  Parks,  64  Cal. 
LSI;  Dyer  v.  Harrison,  03  Cal.  447.]  Nevertheless,  it  seems 
that,  if  the  error  or  irregularity  complained  of  is  capable  of 
correction  by  the  council  on  appeal,  an  appeal  to  the  coun- 
cil is  the  only  reined)'.  [See  opinion  of  Temple  J.  in 
Chambers  v.  Satterlee,  40  Cal.  .Vj-1.  On  page  526,  Mr. 
Justice  Temple  said:  <;I  have  no  doubt  but  that  this  right 
[right  to  appeal]  is  exclusive  of  any  other  remedy  as  to  all 
matters  which  can  be  revised  and  corrected  on  such  appeal." 
See  also  notes  to  section  11  post.]  Accordingly  it  was  held 
in  Dowling-  Vm  Altschul,  33  Pac.  Rep.  495,  that,  where  an 
assessment  for  paving  a  cul-de-sac  failed  to  assess  the  land 
at  the  end  of  the  same,  a  question  is  presented  which  the 
city  council  has  power  to  determine  on  appeal  under  the 
provisions  of  section  11  of  the  act  of  March  18,  1885 — the 
Vrooman  act — and  that,  therefore,  its  decision  is  conclusive, 
although  Mr.  Justice  Harrison,  in  his  concurring  opinion 
in  this  case,  hesitates  to  affirm  that  the  act  of  the  board  of 
supervisors  of  San  Francisco  confirming  an  assessment 
which  is  made  in  manifest  violation  of  the  provisions  of  the 
statute,  concludes  the  owner  from  making  such  defense  in 
an  action  to  enforce  the  assessment.  If,  however,  the  pre- 
vailing opinion  in  this  case  of  Dowling  v.  Altschul  be  cor- 
rect, then  it  seems  that,  to  enable  a  property  owner  to  suc- 
cessfully attack  the  assessment  in  an  action  to  enforce  it, 
not  only  must  some  "substantial  right"  of  the  property 
owner  be  affected  by  the  alleged  error  or  irregularity,  but 
the  error  or  irregularity  complained  of  must  be  one  which 
cannot  be  corrected  by  the  council  on  appeal — the  mischief 
must  be  past  remedy.  Now  it  is  difficult  to  conceive  of  an 


96      STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

error  or  irregularity  in  the  assessment  itself  which  is  past 
remedy,  where  the  work  has  been  properly  done  under  a 
valid  contract  for  the  same,  since,  iinder  the  decisions  cited 
supra,  no  time  is  limited  within  which  an  assessment  may 
be  made,  and,  if  the  first  assessment  be  invalid  for  any 
reason,  the  superintendent  of  streets  may  make  another. 
(supra  page  9 '2.) 

However,  if  the  prevailing  opinion  in  Dowling  v.  Altschul 
be  correct,  then  it  seems  that,  to  determine  whether  or  not 
an  appeal  to  the  council  was  the.  property  owner's  exclusive 
remedy  for  an  omission  of,  or  irregularity  in,  any  one  of  the 
things  which  section  8  of  the  act  requires  to  be  shown  by 
or  contained  in  the  assessment,  two  questions  are  involved, 
viz:  (1.)  Does  the  alleged  omission  or  irregularity  affect 
any  substantial  right  of  the  property  owner?  and  (2)  If  it 
does  affect  a  substantial  right  of  the  property  owner,  can 
the  error  complained  of  be  corrected  b}^  the  council  on 
appeal,  so  as  to  restore  or  preserve  the  substantial  rights  of 
the  ''aggrieved"  property  owner? — i.e.,\s  the  error  or  irreg- 
ularity complained  of  past  remedy  or  not? 

But,  even  if  the  error  complained  of  might  have 
been  corrected  by  the  council  on  appeal,  the  prop- 
erty owner  is  not  an  "aggrieved"  party,  and  there- 
fore is  not  concluded  by  a  failure  to  appeal, — 
or  by  the  decision  of  the  council  on  appeal,  if  one  be  taken, — 
unless  he  is  a  party  to  the  assessment.  [Smith  r.  Cofran,  34 
Cal.  316,  opinion  of  Mr.  Justice  Sawyer  on  petition  for 
rehearing.]  And  he  is  not  a  party  to  the  assessment  unless 
he  is  assessed  in  his  true  name,  or  by  the  designation, 
"unknown."  [Smith  v.  Cofran,  supraJ]  The  same  reason- 
ing would  seem  likewise  to  be  applicable  where  neither  the 
assessment  nor  the  diagram  contains  a  sufficient  description 
of  the  land.  For,  since  "the  identity  of  the  lot  assessed,  and 
not  the  person  who  may  be  the  owner,  is  made  the  essential 
requirement  of  the  statute, "[Gillis  v.  Cleveland,  87  Cal.  217] 
it  would  seem  to  follow  that,  if  the  lot  be  not  sufficiently 
described,  the  lot  owner  is  not  a  party  to  the  assessment, 
and  therefore  not  a  party  "aggrieved,"  and  need  not  appeal 
to  the  council — especially  if  the  assessment  be  not  made 
against  him  in  his  true  name.  [See  authorities  cited  supra 
page  93,  under  the  caption,  "Description  of  Property."] 
So  also,  where  a  lot  is  not  liable  to  be  assessed  at  all,  the 
owner  is  not  a  party  directly  interested  in  the  contract, 
work  or.  assessment;  he  is  not  a  party  to  the  assessment, 
and  therefore  need  not  appeal.  [Bassett  v.  Enwright,  19 
Cal.  636.]  See  also  Frick  v.  Morford,  87  Cal.  576,  where  it 
was  held  that  if  the  lot  assessed  is  wholly  outside  of  the 


(UNI 

FORNl*^ 

APPEAL    BY    LOT    OWNER  A^'l11?,  al^ded    97 


limits  of  the  work  as  fixed  by  the  resolution  of  intention,  it 
cannot  be  held  liable  for  any  assessment,  or  if  only  part  is 
within  the  limits  as  fixed  by  the  resolution,  the  contractor 
is  not  entitled  to  an  assessment  against  that  part  of  the  lot 
not  fronting  upon  the  work  authorized  by  the  resolution, 
and  if  the  lot  is  wholly  outside  of  the  limits  as  fixed  by  the 
resolution  of  intention,  the  owner  is  not  a  party  "aggrieved," 
since  in  such  case  his  lot  could  not  be  held  liable  at  all,  and 
therefore  he  is  not  required  to  appeal  to  the  city  council. 

Therefore,  where  all  the  proceedings  leading  up  to  the 
execution  of  the  contract  have  been  regular  and  proper,  and 
the  contract  is  valid  and  the  work  done  thereunder  has  been 
properly  performed  and  within  the  proper  time,  and  the 
only  irregularity  complained  of  is  one  inhering  in  and 
directly  appertaining  to  the  assessment  itself,  then  it  seems 
that,  for  the  purpose  of  ascertaining  whether  an  appeal  to 
the  council  is  the  property  owner's  only  remedy,  the  follow- 
ing rules  arc  determinative; 

1.  Was    the    property   owner   alleging  the   irregularity  a 
party  to  the  assessment?   If  he  was  not  a  party  to  the  assess- 
ment he  is  not  a  party  "aggrieved*4  and  therefore  need  not 
appeal  to  the  council.     If  the  assessment  is  not  made  against 
him  in  his  true  name  or  under  the  designation  "unknown/' 
he  is  not  a  party  to  the  assessment.    And  it  seems  that  if  the 
lot  be  not  sufficiently  described,  or  if  the  lot  is  not  liable  to 
be  assessed  at  all,  he  is  not  a  party  to  the  assessment. 

2.  If  the  property  owner  complain  ing  of  the  irregularity 
was  a  party  to  the  assessment,  did  the  alleged  omission  or 
irregularity  in  making  the  assessment  affect  any  of  his  sub- 
stantial rights?     If  it  did  not,  then  it  seems"  that  an  appeal 
was  his  only  remedy. 

-/.  If  the  property  owner  complaining  of  the  irregularity 
or  omission,  was  a  party  to  the  assessment,  and  if  the  irregu- 
larity or  omission  complained  of  did  affect  a  substantial 
right,  was  the  mischief  past  remedy,  or  was  it  possible  for 
the  council  on  appeal  to  have  corrected  the  assessment  so 
as  to  have  restored  or  preserved  all  the  substantial  rights  of 
the  aggrieved  property  owner?  If  the  council  might  so 
have  corrected  the  assessment,  then  it  seems  that  an  appeal 
to  the  council  was  the  only  remedy  of  the  complaining 
property  owner.  [See  notes  to  section  11  of  the  act.] 

The  rule  that  "  after  the  jurisdiction  has  once  been 
acquired,  subsequent  proceedings  can  be  attacked  for  only 
such  irregularities  as  affect  substantial  rights,"  is  plain  and 
simple,  but  to  apply  the  rule,  hoc  opus  est. 

(b.)  Appeal  by  Contractor.  The  contractor,  under  section 
11  of  the  act,  has  the  right  to  appeal  to  the  council,  as  well 


98     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

as  a  lot  owner.  If  there  be  some  irregularity  in  the  assess- 
ment, which,  however,  does  not  render  it  void. — does  not 
affect  a  substantial  right  of  the  property  owner, — the  contract- 
or, if  the  property  owner  fails  to  have  the  irregularity  cor- 
rected by  appealing  to  the  council,  will  doubtless  lose  noth- 
ing by  himself  failing  to  appeal,  but  if  the  irregularity  in 
the  assessment  be  one  which  renders  it  nugatory,  the  con- 
tractor's only  remedy  is  by  appeal  to  the  council  where  the 
irregularity  may  be  corrected.  [Smith  v.  Cofran,  34  Cal. 
310;  Frick  v.  Morford,  87  Cal.  576,  580;  See  notes  to  sec- 
tion 11  of  the  act.J 

VI.  Diagram.  Section  8  likewise  requires  a  "diagram" 
to  be  attached  to  the  assessment.  This  diagram  is  required 
to  exhibit  "each  street  or  street  crossing,  lane,  alley,  place, 
or  court  on  which  any  work  has  been  done,  and  showing 
the  relative  location  of  each  district,  lot,  or  portion  of  lot  to 
the  work  done,  numbered  to  correspond  with  the  numbers 
in  the  assessment,  and  showing  the  number  of  feet  fronting, 
or  number  of  lots  assessed,  for  said  work  contracted  for  and 
performed;"  and  in  McDonald  v.  Conniff,  No.  15,085, 
decided  Aug.  30,  1893,  the  Supreme  Court,  per  Harrison,  J., 
said:  "  There  is  no  requirement  in  the  statute  that  the 
'work'  shall  be  shown  or  even  designated  upon  the  diagram; 
but  if  it  [the  objection]  be  construed  as  an  objection  that  the 
diagram  does  not  show  upon  what  portion  of  Tenth  street 
the  work  was  done,  it  may  also  be  said  that  the  statute  does 
not  make  this  requirement.  *  *  *  The  diagram  is  only 
auxiliary  to  the  assessment,  and  is  intended  to  be  merely  a 
map  exhibiting  'each  street'  upon  which  the  work  was  done. 
The  requirement  that  it  shall  show  'the  relative  location  of 
each  lot  assessed  to  the  work  done,'  is  satisfied  if  it  shows 
their  location  in  relation  to  the  'exhibited'  street  upon 
which  the  work  was  done.  Taken  in  connection  with  the 
description  of  the  work  for  which  the  assessment  was  made, 
it  can  then  be  seen  from  an  inspection  whether  any  of  the 
lots  assessed  are  so  located  as  to  be  liable  for  any  part  of 
the  expense  of  the  work,  and  if  for  any  reason  a  particular 
lot  ought  not  to  have  been  assessed  for  that  work,  the  error 
can  be  corrected  upon  application  to  the  proper  tribunal. 
The  diagram  is  not  intrinsically  invalid  unless  the  lots 
shown  thereon  are  so  located  that  they  could  not  under  any 
circumstances  be  made  liable  for  a  portion  of  the  expense 
of  the  work.  It  is  not  essential  to  the  validity  of  an  assess- 
ment that  the  lots  assessed  should  front  upon  the  entire 
portion  of  the  street  exhibited  upon  the  diagram.  In  the 
case  of  an  assessment  fc-r  work  done  upon  main  street  cross- 
ings, or  at  the  termination  of  one  street  in  another,  the 


SECTION    NIXE    OF    THE    ACT 

street  crossing  or  the  termination  id  required  to  be  exhibited 
on  the  diagram,  while  the  lots  to  be  assessed  front  upon 
portions  of  the  streets  on  which  none  of  the  work  was  done, 
and  the  diagram  is  to  show  their  relative  location  to  the 
work  done  by  showing  that  they  are  within  the  quarter 
blocks  or  territory  liable  to  be  assessed.  The  diagram  in 
the  present  case  sufficiently  complies  with  the  statute.  It 
exhibits  Tenth  street  as  the  street  upon  which  the  work  was 
done,  and  it  also  delineates  the  several  lots  assessed  and 
shows  that  each  of  the  lots  assessed  fronts  upon  Tenth 
street,  and  that  its- location  is  within  the  territory  liable  to 
be  assessed  for  work  done  upon  Tenth  street." 

SKCTION  9.  To  said  assessment  shall  be  attached  a  warrant,  which  shall 
be  signed  by  the  superintendent  of  streets,  and  countersigned  by  the  mayor 
of  said  city.  The  said  warrant  shall  be  substantially  in  the  following  form  : 

l-'OK.M    OF    THK    W  A  KUAN  I'. 

By  virtue  hereof,  I  (name  of  the  superintendent  of  streets),  of  the  city 
of  —  — ,  county  of  —  —  (or  city  and  county  of ),  and  state  of  Cali- 
fornia, by  virtue  of  the  authority  vested  in  me  as  said  superintendent  of 
streets,  do  authorize  and  empower  (name  of  contractor),  (his  or  their) 
agents  or  assigns,  to  demand  and  receive  the  several  assessments  upon 
the  assessment  and  diagram  hereto  attached,  and  this  shall  be  (his  or 
their)  warrant  for  tin-  same. 

(Date.)  (name  of  superintendent  of  streets). 

Countersigned  by  (name  of  mayor). 

Said  warrant,  assessment  and  diagram,  together  with  the  certificate  of 
the  city  engineer,  shall  be  recorded  in  the  office  of  said  superintendent  of 
street*.  When  BO  recorded  the  several  amounts  assessed  shall  be  a  lien 
upon  the  lands,  lots,  or  portions  of  lots  assessed,  respectively,  for  the 
period  of  two  years  from  the  date  of  said  recording,  unless  sooner  dis- 
charged; and  from  and  after  the  date  of  said  recording  of  any  warrant, 
assessment,  diagram  and  certificate,  all  persons  mentioned  in  section 
eleven  of  this  act  shall  be  deemed  to  have  notice  of  the  cont2nts  of  the 
record  thereof.  After  said  warrants-assessment,  diagram  and  certificate 
are  recorded  the  same  shall  be  delivered  to  the  contractor,  or  his 
agent  or  assigns,  on  demand,  but  not  until  after  the  payment  to  the  said 
superintendent  of  streets  of  the  incidental  expenses  not  previously  paid  by 
the  contractor,  or  his  assigns ;  and  by  virtue  of  said  warrant  said  contractor, 
or  his  agent  or  assigns,  shall  be  authorized  to  demand  and  receive  the  amount 
of  the  several  assessments  made  to  cover  the  sum  due  for  the  work  speci- 
fied in  such  contracts  and  assessments.  Whenever  it  shall  appear  by  any 
final  judgment  of  any  court  of  this  state  that  any  suit  brought  to  fore- 
close the  lien  of  any  sum  of  money  assessed  to  cover  the  expense  of  said 
street  work  done  under  the  provisions  of  this  act  has  been  defeated  by 
reason  of  any  defect,  error,  informality,  omission,  irregularity  or  illegality 
in  any  assessment  hereafter  to  be  made  and  issued,  or  in  the  recording 
thereof,  or  in  the  return  thereof  made  to  or  recorded  by  said  superintend- 
ent of  streets,  any  person  interested  therein  may,  at  any  time  within  three 
months  after  the  entry  of,  said  final  judgment,  apply  to  said  superintend- 
ent of  streets  who  issued  the  same,  or  to  any  superintendent  of  streets  in 


100    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

office  at  the  time  of  said  application,  for  another  assessment  to  be 
issued  in  conformity  to  law;  and  said  superintendent  shall,  within  fifteen 
days  after  the  date  of  said  application,  .make  and  deliver  to  said  applicant 
a  new  assessment,  diagram  and  warrant  in  accordance  with  law;  and  the 
acting  mayor  shall  countersign  the  same  as  now  provided  by  law,  which 
assessment  shall  be  a  lien  for  the  period  of  two  years  from  the  date  of  said 
assessment,  and  be  enforced  as  provided  in  section  seven  of  this  act. 
[Amendment  approved  March  31,  1891,  statutes  1891,  page  205.] 

[Section  9  was  amended  in  1889,  by  act  of  March  14,  1889,  statutes  1889, 
page  167;  and  again  in  1891  by  act  of  March  31,  1891,  statutes  1891,  page 
205.] 

The  proceedings  necessary  to  the  existence  of  a  valid 
lien,  terminate  with  the  recording  of  the  warrant,  assess- 
ment and  diagram,  together  with  the  certificate  of  the  city 
engineer,  as  provided  for  by  section  9  of  the  act.  Hitherto 
the  lien  has  been  inchoate,  commencing  with  the  first 
acquisition  and  exercise  of  jurisdiction  by  the  council, 
which  was  operative  only  so  far  as  to  prevent  owners  from 
affecting  the  assessment  by  changing  the  area  and  bounda- 
ries of  the  land  as  it  stood  when  jurisdiction  over  the  sub- 
ject matter  first  attached.  The  Supreme  Court  has  held 
that  the  sale  of  a  thin  frontage  for  the  purpose  of  confining 
the  assessment  to  this  comparatively  valueless  strip  is  una- 
vailing. [Dougherty  v.  Miller,  36  Gal.  87.]  But,  under  the 
provisions  of  section  9  of  the  act,  the  lien,  for  the  first  time, 
becomes  perfected  by  the  recordation  of  the  warrant,  assess- 
ment, diagram,  etc,  unless  upon  appeal  to  the  council,  as 
provided  for  by  section  11,  the  assessment  shall  be  amended, 
or  set  aside  and  a  new  one  issued.  In  such  case  the  lien  is 
perfected  according  to  and  by  the  final  recordation. 

There  are,  therefore,  at  least  fourteen  acts  necessary  to 
the  existence  of  a  valid  lien  and,  where  the  proceedings  are 
inaugurated  by  a  petition  as  provided  for  by  section  4  of 
the  act,  or  where  grading  is  to  be  done  after  a  change  of 
grade,  and  the  petition  required  by  section  2  of  the  act,  as 
amended  in  1893,  is  filed,  there  are,  including  such  petition, 
fifteen  necessary  acts  to  the  existence  of  a  valid  lien.  In 
other  cases,  the  fourteen  necessary  acts  to  the  existence  of 
a  valid  lien  are:  (1.)  Passage  of  resolution  of  intention;  (2.) 
posting  and  publication  of  resolution;  (3.)  posting  and  pub- 
lication of  notices  of  passage  of  resolution;  (4-)  passage  of 
order  for  the  work  to  be  done;  (5.)  publication  of  order  for 
the  work  to  be  done;  (these  first  five  requisites  are  provided 
for  by  section  3  of  the  act,)  (6.}  posting  and  publication  of 
notices  inviting  sealed  proposals;  (7.)  consideration  of  bids; 
(8.)  award  of  contract;  (9.)  posting  and  publication  of 
notice  of  award  of  contract;  (10.)  execution  of  written  con- 
tract by  superintendent  of  streets;  (these  requisites — from 


nr  A  T?T>  \  x-T>  s''r-  '•' !ts  "'Bonded.        1  A1 

\\AKIvAM  AInrr.»i  Ml     1S')1  1U1 


March  31, 


6  to  10  inclusive — are  provided  for  by  section  5  of  the  act,) 
(11.)  making  an  assessment,  as  provided  by  section  8  of  the 
act;  (12.)  attaching  to  the  assessment  a  diagram  as  provided 
by  said  section  8;  (13.)  making,  signing  and  countersigning 
a  warrant  for  the  collection  of  the  assessment  and  attaching 
the  same  to  the  assessment  as  provided  by  section  9  of  the 
act;  and  (14-)  recording  said  warrant,  assessment  and  dia- 
gram, together  with  the  certificate  of  the  city  engineer,  as 
provided  by  said  section  9  of  the  act. 

When  these  fourteen  acts,  terminating  with  the  recorda- 
tion  of  the  \varrant,  assessment  and  diagram,  together  with 
the  certificate  of  the  city  engineer,  have  been  performed  as 
required  by  the  statute,  "the  several  amounts  assessed  shall 
be  a  lien  upon  the  lands,  lots  or  portions  of  lots  assessed, 
respectively,  for  the  period  of  two  years  from  the  date  of 
said  recording,  unless  sooner  discharged." 

Section  9  provides  for:  (1.)  A  warrant  for  the  collec- 
tion of  the  assessment,  the  form  of  which  is  given,  to  be 
signed  by  the  superintendent  of  streets  and  countersigned 
by  the  mayor.  (2.)  Etecordation  of  the  warrant,  assessment 
and  diagram,  together  with  the  certificate  of  the  city  engineer. 
(3.)  Effect  of  such  recordation.  (4-)  Delivery  of  warrant, 
assessment,  diagram  and  certificate  to  the  contractor,  his 
agents  or  assigns,  and  effect  of  such  delivery.  (5.)  Re-as- 
sessment in  case  the  original  assessment  be  adjudged  invalid 
by  reason  of  any  defect,  error,  informality,  omission  or 
irregularity,  or  illegality  in  the  original  assessment  itself. 

I.  Warrant,  Signing  and  Counter -signing.  The  form  of 
the  warrant  is  given  in  the  act  (Sec.  9)  and,  as  a  part  of  that 
form,  provision  is  made  for  filling  in  the  date  of  the  warrant. 
Therefore  it  is  a  part  of  the  statutory  requirement  that  the 
warrant  be  dated.  It  was  accordingly  held  in  Shipman  v. 
Forbes,  97  Cal.  572  that  if  the  warrant  be  not  dated 
so  as  to  show  the  day  of  the  month  and  year,  it  can 
not  serve  as  the  foundation  of  proceedings  for  the 
collection  of  the  assessment.  The  court  by  Mr.  Justice 
Harrison,  said:  "The  form  prescribed  by  the  statute, 
makes  the  date  as  much  a  part  of  the  warrant  as  it 
does  the  signature  of  the  officer,  and  in  matters  of  this 
character,  in  which  the  property  of  a  citizen  is  to  be  taken 
in  inritum,  it  cannot  be  said  that  any  requirement  of  the 
statute  is  to  be  disregarded.  Every  requisite  having  the 
semblance  of  benefit  to  the  owrner  must  be  complied  with; 
and  when  the  form  of  a  statutory  proceeding  is  prescribed,  its 
observance  becomes  essential  to  the  validity  of  the  pro- 
ceedings." 

The   fact  that  the  mayor,  before  his  election,  had  become 


102          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

the  assignee  of  a  contract  for  the  improvement  of  a  street, 
as  security  for  a  debt  due  him  by  the  contractor,  does  not 
affect  the  validity  of  the  contract  or  the  assessment  for  the 
work,  nor  incapacitate  him  from  countersigning  the  warrant 
for  the  collection  of  the  assessment.  [Baudry  v.  Yalde/,  '32 
Cal.  269.]  The  act  of  the  mayor  in  countersigning  the  war- 
rant, is  purely  ministerial,  and  if  there  were  any  irregularity 
in  countersigning  the  warrant  under  such  circumstances, 
such  irregularity  is  waived  by  a  failure  to  appeal  to  the 
council  as  provided  for  by  section  11  of  the  act.  [Id.] 

The  mayor's  function  in  countersigning  the  warrant,  is 
limited  merely  to  approval,  and  whatever  is  essential  to  the 
issuance  and  validity  of  the  warrant,  must  be  done  before  it 
reaches  the  mayor;  and  no  act  of  his  can  supply  any  defect, 
o  '  cure  any  irregularity  in  the  prior  proceedings.  [Shipman 
v.  Forbes,  supra.] 

While  the  warrant  must  be  countersigned  by  the  mayor, 
it  has  been  held,  nevertheless,  that  an  omission  of  his 
name  arid  the  designation  of  his  office  from  the  recorded 
warrant,  as  recorded  in  the  record  book  of  the  street  super- 
intendent, does  not  render  the  recording  ineffectual.  [Gillis 
v.  Cleveland,  87  Cal.  215;  see  also  S.  F.  v.  Certain  Real 
Estate,  50  Cal.  188.] 

II.  Recording  Warrant,  Assessment,  etc.  The  warrant, 
as  we  have  seen,  must  be  substantially  in  the  form 
provided  by  the  act,  without  the  omission  of  anything  pre- 
scribed by  that  form,  and  must  be  signed  by  the  superin- 
tendent and  countersigned  by  the  mayor,  and  attached  to 
the  assessment,  as  provided  by  section  9  of  the  act.  After 
this,  and  as  an  essential  to  the  existence  of  a  valid  assess- 
ment lien,  "said"  warrant,  that  is,  the  warrant  in  the  form 
prescribed  and  signed  and  countersigned  as  required  by 
the  act,  together  with  the  assessment,  diagram  and  certifi- 
cate of  the  city  engineer,  must  be  recorded  in  the  office  of 
the  superintendent  of  streets.  These  documents  must  be 
recorded  by  the  street  superintendent  at  full  length,  in  a 
book  to  be  kept  for  that  purpose  in  his  office.  Section  10 
provides  that,  after  the  contractor  has  made  return  of  the 
warrant,  "the  superintendent  of  streets  shall  record  the 
return  so  made,  in  the  margin  of  the  record  of  the  warrant 
and  assessment,  and  also  the  original  contract  referred  to 
therein,  if  it  has  not  already  been  recorded,  at  full  length 
in  a  book  to  be  kept  for  that  purpose  in  his  office,  and  shall 
sign  the  record."  From  which  it  appears  that  the  warrant, 
assessment,  diagram  and  certificates  of  the  city  engineer 
are  to  be  recorded  in  a  book  kept  for  that  purpose  in  the 
office  of  the  superintendent.  Section  21  provides  that  the 


RECORDING   WARRANT,   ASSESSMENT,  ETC.       jS^afS^SS 

superintendent  shall  keep  "such  records  as  may  be  required 
by  the  provision  of  this  act."  And  by  section  18  it  is  pro- 
vided that  such  record  "shall  have  Jthe  same  force  and  effect 
as  other  public  records,  and  copies  therefrom,  duly  certified, 
may  be  used  in  evidence  with  the  same  effect  as  the  origi- 
nals." The  certificate  of  the  city  engineer  must  be  recorded 
together  with  the  warrant,  assessment  and  diagram.  Its 
character  is  described  in  the  first  subdivision  of  section  34 
of  the  act.  [See  Jennings  v.  Le Breton,  80  Cal.  8,  14,  for 
remarks  upon  a  provision  in  the  act  of  1872  similar  to 
sections  18  and  34  of  present  street  work  act.] 

Until  the  assessment,  diagram,  warrant  and  certificate 
of  the  city  engineer  arc  "recorded"  in  the  record-book  kept 
in  the  office  of  the  street  superintendent,  the  contractor 
does  not  acquire  a  lien  for  the  work  done.  The  warrant 
must  be  so  recorded  before  it  is  delivered  to  the  contractor 
or  his  assigns.  [Ilimmelmaii  r.  Danos,  35  Cal.  441;  Gillis 
b.  Cleveland,  S7  Cal.  214,  21D.J 

\Yhat  constitutes  a  "record"?  This  question  was  con- 
sidered in  Ilimmelinan  r.  Danos,  supra,  in  Dougherty 
jfr.  Hitchcock,  35  Cal.  512,  and  in  Hiintnelmann  v.  Hoad- 
ley,  44  Cal.  213,  and  the  conclusion  to  be  deduced 
fioni  these  decisions  is:  There  is  no  "record"  until 
the  official  character  of  the  entry  or  copy  of  the  war- 
rant, assessment,  diagram  and  certificate  in  the  record 
book  has  been  made  to  appear  upon  its  face  by  adding  a 
certificate  signed  by  the  superintendent  of  streets  or  by  a  dep- 
uty in  his  name.  In  Himmelnian  v.  Danos,  supra,  35  Cal. 
451,  it  is  said,  "The  making  of  the  record  is  an  official  act, 
and  its  official  character  must  be  made  to  appear  upon  its 
face,  which  can  be  done  only  by  adding  a  certificate  signed  by 
the  office  r  authorized  to  make  the  record.  Until  certified  and 
signed  by  the  proper  officer,  it  is  but  waste  paper,  of  which 
no  one  need  take  notice.  To  become  a  record,  it  must  be 
the  official  act  of  the  officer  authorized  to  make  it;  to 
become  his  act  it  must  have  his  signature.  Until  signed 
it  is  the  act  of  no  one,  and  is  as  valueless  for  any  purpose  as 
an  unsigned  deed  or  sheriff's  return.  The  only  difference 
between  that  which  is  record  and  that  which  is  not,  is  the 
official  stamp  or  authenticity  which  the  former  bears  upon 
its  face.  The  former  proves  itself;  the  latter  does  not.  The 
former  proves  itself  because  it  bears  the  stamp  of  an  officer 
of  the  law,  acting  under  the  solemnities  of  an  oath,  or  at 
least  of  official  duty,  and  it  is  the  official  stamp,  and  noth- 
ing else,  which  makes  it  record."  In  Dougherty  v.  Hitch- 
cock, 35  Cal.  521-2,  it  was  said,  "In  Himmelman  v.  Danos, 
it  is  held  that  the  copies  of  the  assessment,  warrant,  and 


104    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

diagram  found  in  the  superintendent's  book  could  not  be 
considered  as  a  record  until  signed  by  the  superintendent, 
because  the  making  of  the  record  was  an  official  act,  and 
its  official  character  must  be  made  to  appear  on  its  face." 

In  Himmelmann  v.  Hoadley,  44  Gal.  225,  it  was  said:  "In 
Himmelman  v.  Danos,  35  Gal.  441,  the  question  whether  the 
record  of  the  assessment  should  be  separately  signed  was 
reserved.  The  usual,  and,  in  our  opinion,  proper  mode  for 
the  authentication  of  such  a  record,  is  by  appending  the 
official  certificate  of  the  officer  whose  duty  it  is  to  make  the 
record.  He  need  not  specify  in  his  certificate  the  pages  of 
the  record  upon  which  the  assessment,  etc.,  are  copied; 
but  when  he  does  certify  *in  that  form,  the  certificate 
will  be  limited  to  the  pages  specified,  unless  the  record 
itself  shows  that  the  reference  to  the  pages  is  a  clerical 
error." 

Therefore,  while  in  the  case  of  Himmelman  v.  Danos, 
the  question,  whether  the  record  of  the  assessment  should 
be  separately  signed,  was  reserved,  it  is  established  that 
copies  of  the  assessment,  warrant,  diagram  and  certificate, 
found  in  the  record  book  in  the  superintendent's  office,  can 
not  be  be  considered  as  "recorded"  until  there  is  added  to  it 
a  certificate  signed  by  the  superintendent  himself,  or  by  a 
duly  authorized  deputy  in  his  name,  or  at  least  there  must 
be  added  the  signature  of  the  superintendent  or  his  deputy, 
even  if  no  certificate  is  added;  and,  while,  according  to  the 
provisions  of  section  10  of  the  act,  it  is  expressly  required 
that  the  record,  when  completed,  by  the  addition  of  the  con- 
tract and  the  return,  shall  be  signed  by  the  superintendent, 
nevertheless,  it  seems  to  be  imperatively  necessary  that  the 
copy  of  the  warrant,  assessment,  diagram  and  certificate  in 
the*record-book,  should  be  followed  by  the  signature  of  the 
superintendent  or  his  deputy,  and  that  the  same  be  done 
prior  to  the  entry  of  the  contract  and  return,  or,  at  least, 
prior  to  the  return,  and  likewise  prior  to  the  demand  by  the 
contractor.  For  the  contractor  is  not  authorized  to  make  a 
demand  until  there  is  a  lien,  a  charge  against  the  land,  and 
there  is  no  lien,  according  to  the  express  provisions  of  the 
act,  until  the  warrant,  assessment,  etc.,  are  recorded,  and, 
according  to  the  decisions  cited  above,  the  warrant,  assess- 
ment; etc.,  are  not  recorded  until  they  are  copied  into  the 
record-book  kept  in  the  superintendent's  office,  and  signed 
by  him  or  his  deputy  in  his  name.  A  separate  certificate 
and  signature  of  the  officer  need  not  follow  each  of  the 
documents  recorded,  i.  e.  need  not  follow,  separately,  the 
warrant,  and  the  assessment,  and  the  diagram  and  the 
certificate  of  the  city  engineer,  but  one  certificate  signed  by 


DELIVERY    OF    WARRANT  KIS1*1       105 


the  authorized  officer,  appended  to  the  copy  of  the  war- 
rant, assessment,  diagram  and  certificate  of  the  city  engineer 
is  sufficient.  [Himraelmann  v.  Hoadley,  44  Cal.  213.] 

III.  Effect  of  Recording  Warrant,  Assessment,  etc. 

The  effects  of  recording  the  warrant,  assessment,  diagram 
etc.,  are:  (1.)  To  create  a  lien  for  the  several  amounts 
assessed  upon  the  lands,  lots  or  portions  of  lots  assessed, 
for  the  period  of  two  years  from  the  date  of  recording,  unless 
sooner  discharged.  This  lien,  by  virtue  of  the  provisions 
of  section  10  of  the  act,  is  liable  to  be  lost  if  the  contractor 
does  not  make  due  return  of  the  warrant  within  thirty  days 
after  its  date.  Section  10  provides,  that  "if  any  contractor 
shall  fail  to  return  his  warrant  within  the  time  and  in  the 
form  provided  in  this  section  he  shall  thenceforth  have  no 
lien  upon  the  property  assessed."  If  an  action  upon  the 
assessment  lien  is  commenced  within  two  years  from  the 
recording  of  the  warrant,  assessment,  etc.,  the  lien  will  not 
lapse,  though  judgment  is  rendered  after  the  two  years 
expire.  [Dougherty  r.  Henaire,  47  Cal.  9;  Randolph  v. 
Bay  ue,  44  Cal.  366.]  A  street  assessment  lein  is  a  creature 
of  the  statute,  and  if  it  is  allowed  to  expire  by  lapse  of  time, 
it  cannot  be  enforced  upon  any  grounds  of  equitable  con- 
sideration. [Brady  v.  Burke,  90  Cal.  2.]  (2.)  From  and  after 
the  date  of  said  recording  of  any  warrant,  assessment,  dia- 
gram and  certificate,  all  persons  mentioned  in  section  11  of 
the  act  shall  be  deemed  to  have  notice  of  the  contents  of  the 
record  thereof.  Said  persons,  by  virtue  of  the  provisions  of 
said  section  11,  have  thirty  days  after  the  date  of  the  war- 
rant within  which  to  appeal  to  the  city  council. 

The  contractor,  if  he  finds  the  assessment  to  be  incorrect 
or  illegal  in  a  particular  which  may  be  remedied  by  the 
council  on  appeal,  should  appeal  to  the  council  within 
thirty  days  from  the  date  of  the  warrant,  and  have  the 
assessment  corrected  and  made  legal.  [See  Smith  v.  Cofran, 
34  Cal.  315;  Frick  v.  Morford,  87  Cal  580.] 

IV.  Delivery  of  Warrant,  Assessment,  etc.,  to  the  Contractor. 
After  the  warrant,    assessment,    diagram    and    certificate 

have  been  recorded,  i.  e.,  copied  into  the  record-book,  and 
authenticated  by  the  signature  of  the  superintendent  or  his 
deputy,  they  must  be  delivered  to  the  contractor,  or  his 
agent  or  assigns,  on  demand,  after  the  payment  to  the 
superintendent  of  all  incidental  expenses,  not  previously 
paid  by  the  contractor  or  his  assigns.  By  virtue  of  said 
warrant,  the  contractor,  his  agent  or  assigns  are  authorized 
to  demand  and  receive  the  amount  of  the  several  assessments 
made  to  cover  the  sum  due  for  the  work  specified  in  the 
contract  and  assessment. 


106         STREET  WORK  LAW STREET    IMPROVEMENT   ACT 

If  the  original  contractor  has  assigned  his  contract,  the 
warrant  may,  nevertheless,  be  delivered  to  him  as  the 
agent  of  his  assignee,  and,  as  agent  of  his  assignee,  he  may 
make  the  demand,  Taylor  v.  Palmer,  31  Cal.  241,  where  it  is 
said,  page  249,  "The  form  of  the  warrant  is  the  same  in  all 
cases,  [i.  e.  it  is  always  issued  running  to  the  original  con- 
tractor, his  agent  or  assignees]  and  in  the  absence  of  any 
notice  of  an  assignment  of  the  contract,  and  perhaps  in  any 
event,  the  superintendent  delivers  it,  as  a  matter  of  course, 
to  the  original  contractor  if  applied  for  by  him;  if  not,  to 
any  other  person  authorized  by  him  to  receive  it  either  as 
agent  or  assignee.  Likewise  the  demand  for  payment  may 
be  made  by  the  original  contractor,  his  authorized  agent  or 
assignee.  When  an  assignment  has  been  made,  and  the 
demand  is  by  the  original  contractor,  he  acts  as  the  agent 
of  his  assignee.  The  property  owner  may  safely  pay  to 
anyone  who,  on  the  face  of  the  wrarrantis  entitled  to  receive 
the  money,  especially  in  the  absence  of  any  notice  to  the 
contrary."  [See  also  Foley  v.  Bullard,  No.  15,305,  decided 
September  11,  1893.] 

V.  Re-assessment  after  Judgment  adjudging  an  Assess- 
ment Illegal.  The  re-assessment  provided  for  by  section  9 
of  the  act  must  be  made  after  a  "final"  judgment  of  a  court 
of  this  state.  The  judgment  must  be  final.  And  it  must 
appear  from  such  final  judgment  that  the  suit  in  which  it 
was  rendered  has  been  defeated  by  reason  of  some  "  defect, 
error,  informality,  omission,  irregularity,  or  illegality"  in 
(1.)  the  assessment  itself ,  or  ($.)  in  the  recording  thereof,  or 
(3.)  in  the  return  thereof  made  to  the  superintendent  of 
streets,  as  provided  for  by  section  10,  or  (4.)  in  the  return 
recorded  by  the  street  superintendent,  as  provided  for  by 
said  section  10. 

This  merciful  provision  of  the  act  only  applies  to  errors, 
etc.,  in  the  assessment  itself,  or  in  its  record,  or  in  the  con- 
tractor's return,  or  in  the  record  thereof.  It  is  not  appli- 
cable to  errors  in  the  council's  proceedings,  or  in  the  con- 
tract. But  independently  of  this  provision  of  the  statute,  if 
the  council  has  properly  acquired  jurisdiction  to  order  the 
work  to  be  done,  and  a  contract  therefor  has  been  properly 
made,  and  fulfilled  to  the  satisfaction  of  the  street  superin- 
tendent, and  all  the  proceedings  up  to  this  point  have  been 
regular,  it  seems  that,  under  the  decision  in  Himmelmann 
v.  Cofran,  36  Cal.  411,  and  Wood  v.  Strother,  76  Cal.  545, 
the  superintendent  may  make  a  new  assessment,  and  pro- 
ceedings subsequent  thereto,  where  the  first  assessment  is 
void  by  reason  of  any  defect,  error,  informality,  omission, 
irregularity  or  illegality.  And  if,  independently  of  any 


SECTION    TEN    OF    THE    ACT  S5rohl£tt»i 

statutory  provision  therefor,  the  superintendent  may  make 
a  new  assessment  when  the  first  one  is  void  by  reason  of 
some  error  or  omission  in  making  it,  it  does  not  appear 
why,  for  the  same  reason  he  may  not  issue  a  new  warrant, 
for  example,  when  for  any  reason  the  first  warrant  is  void. 
[See  Elliott  on  Roads  and  Streets,  pp.  435-6.] 

In  Wood  v.  Strother,  76  Cal.  545,  it  was  held  that  if  an 
assessment  has  been  adjudged  to  be  void  for  causes  affecting 
the  assessment  itself,  and  not  the  proceedings  upon  which 
it  rests,  a  new  assessment  may  be  made  within  a  reasonable 
time,  and  that  wha't  is  a  reasonable  time  is  to  be  determined 
upon  a  consideration  of  all  the  circumstances,  also  that  .the 
fact  that  some  of  the  owners  have  paid  what  was  charged 
against  their  property  by  the  void  assessment,  is  not  of 
itself  a  reason  why  a  valid  assessment  should  not  be  made 
and  that  a  court  of  equity  will  treat  the  payments  made  as 
payments  in  advance,  and  compel  the  contractor  to  credit 
them  on  the  second  assessment;  also  that  mandamus  will  lie 
to  compel  the  auditor  to  countersign  the  warrant  on  the 
second  assessment,  notwithstanding  that  the  act  requiring 
him  to  countersign  the  warrant  [San  Francisco  street  work 
act  of  1872]  provided  that  "befrtre  countersigning  it,  [he] 
shall  examine  the  contract,  the  steps  taken  previous  thereto, 
and  the  record  of  assessments,  and  must  be  satisfied  that  the 
proceedings  have  been  legal  and  j  air." 

SKCTIOX  10.  The  contractor,  or  his  assigns,  or  some  person  in  his  or  their 
behalf,  shall  call  upon  the  persons  assessed,  or  their  agents,  if  they  can 
conveniently  be  found,  and  demand  payment  of  the  amount  assessed  to 
each.  If  any  payment  be  made  the  contractor,  his  assigns,  or  some  person  in 
his  or  their  behalf,  shall  receipt  the  same  upon  the  assessment  in  presence 
of  the  person  making  such  payment,  and  shall  also  give  a  separate  receipt  if 
demanded.  Whenever  the  person  so  assessed  or  their  agents,  cannot  con- 
veniently be  found,  or  whenever  the  name  of  the  owner  of  the  lot  is  stated  as 
"unknown"  on  the  assessment,  then  the  said  contractor,  or  his  assigns,  or 
some  person  in  his  or  their  behalf,  shall  publicly  demand  payment  on  the 
premises  assessed.  The  warrant  shall  be  returned  to  the  superintendent 
of  streets  within  thirty  days  after  its  date,  with  a  return  indorsed  thereon, 
signed  by  the  contractor,  or  his  assigns,  or  some  person  in  his  or  their 
behalf,  verified  upon  oath,  stating  the  nature  and  character  of  the  demand, 
and  whether  any  of  the  assessments  remain  unpaid,  in  whole  or  in  part, 
and  the  amount  thereof.  Thereupon  the  superintendent  of  streets  shall 
record  the  return  so  made,  in  the  margin  of  the  record  of  the  warrant  and 
assessment,  and  also  the  original  contract  referred  to  therein,  if  it  has  not 
already  been  recorded  at  full  length  in  a  book  to  be  kept  for  that  purpose 
in  his  office,  and  shall  sign  the  record.  The  said  superintendent  of  streets 
is  authorized  at  any  time  to  receive  the  amount  due  upon  any  assessment 
list  and  warrant  issued  by  him,  and  give  a  good  and  sufficient  discharge 
therefor;  provided,  tiiat  no  such  payment  so  made  after  suit  has  been 


108    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

commenced,  without  the  consent  of  the  plaintiff  in  the  action,  shall  operate 
as  a  complete  discharge  of  the  lien  until  the  costs  in  the  action  shall  be 
refunded  to  the  plaintiff;  and  he  may  release  any  assessment  upon  the 
books  of  his  office,  on  the  payment  to  him  of  the  amount  of  the  assessment 
against  any  lot  with  interest,  or  on  the  production  to  him  of  the  receipt  of 
the  party  or  his  assigns  to  whom  the  assessment  and  warrant  were  issued ; 
and  if  any  contractor  shall  fail  to  return  his  warrant  within  the  time  and  in 
the  form  provided  in  this  section,  he  shall  thenceforth  have  no  lien  upon  the 
property  assessed ;  provided,  however,  that  in  case  any  warrant  is  lost,  upon 
proof  of  such  loss  a  duplicate  can  be  issued,  Upon  which  a  return  may  be 
made,  with  the  same  effect  as  if  the  original  had  been  so  returned.  After 
the  return  of  the  assessment  and  warrant  as  aforesa*d,  all  amounts  remain- 
ing due  thereon  shall  draw  interest  at  the  rate  of  ten  per  cent,  per  annum 
until  paid.  [Statutes  1885,  p.  155]. 
Section  10  of  the  act  of  March  18, 1885,  never  has  been  amended. 

In  the  notes  to  section  9  it  is  stated  that  the  proceedings 
necessary  to  the  existence  of  a  valid  lien  terminate  with  the 
recording  of  the  warrant,  assessment,  diagram  and  certificate 
of  the  city  engineer,  as  provided  for  by  said  section  9,  and 
that  there  are  at  least  fourteen  acts  necessary  to  the  exist- 
ence of  a  valid  lien  commencing  with  the  passage  of  the 
resolution  of  intention.  Section  10  provides  for  three  more 
acts  necessary  to  the  existence  of  the  right  to  successfully 
maintain  a  suit  against  the  lot  owners,  as  provided  for  by 
section  12  of  the  act.  The  three  things  required  by  section 
10  as  necessary  prerequisites  to  the  right  to  successfully 
maintain  a  suit  against  the  lot  owners,  are:  (1.)  Demand 
upon  the  persons  assessed  or  their  agents,  or  on  the  premises 
assessed.  (#.)  Return  of  warrant,  with  a  return  indorsed 
thereon,  signed  and  verified, and  (3.)  Recording  of  the  return 
and  also  the  original  contract  referred  to  in  the  warrant  and 
assessment,  if  it  has  not  already  been  recorded.  These  three 
things,  therefore,  required  by  section  10  as  necessary  pre- 
requisites to  the  existence  of  a  valid  right  of  action,  together 
with  the  other  fourteen  acts  mentioned  in  the  notes  to  sec- 
tion 9  of  the  act,  as  necessary  to  the  existence  of  a  valid 
assessment  lien,  making  in  all  seventeen  necessary  acts,  are 
the  seventeen  prerequisites  to  the  existence  of  a  valid  right 
of  action  in  any  case;  and  in  some  cases  there  may  be  more, 
as  when  it  is  necessary  to  inaugurate  proceedings  to  grade 
by  a  petition,  as  provided  for  by  section  2  of  the  act,  for 
example.  Section  10  likewise  provides  for  interest  upon 
the  amounts  due  on  the  assessment. 

I.  Demand.  There  are  three  modes  provided  by  the 
statute  (section  10)  in  which  demand  may  be  made  by  the 
contractor  for  street  assessments,  to  wit:  (1.)  of  the  person 
assessed;  (#.)  of  his  agents;  and  (3.)  a  demand,  publicly 
made,  on  the  premises  assessed.  And  there  are  three  per- 


PERSONAL    DEMAND  Kchlt.^      109 

sons  or  classes  of  persons,  by  whom  the  demand  may  be 
made,  to  wit:  (1.)  The  contractor  himself;  (2.)  the  assignee 
of  the  contractor,  or  (3.)  some  person  on  behalf  of  the  con- 
tractor or  his  assignee. 

(a.)  Demand  upon  the  Persons  Assessed  or  their  Agents. 
The  section  provides  that  the  contractor  or  person  making 
the  demand  "  shall  call  upon  the  persons  assessed  or  their 
agents,  if  they  can  conveniently  be  found,  and  demand  pay- 
ment of  the  amount  assessed  to  each."  The  section  like- 
wise provides  that  the  demand  "shall"  be  made  on  the 
premises  in  two  cases,  viz:  (1.)  whenever  the  persons 
assessed,  or  their  agents,  cannot  conveniently  be  found,  or 
(2.)  whenever  the  name  of  the  owner  of  the  lot  is  stated  as 
"  unknown "  on  the  assessment.  When,  therefore,  the 
assessment  is  made  against  the  owner  by  name,  demand 
must  be  made  upon  him  or  his  agent,  with  but  one  excep- 
tion, viz.,  where  "they  cannot  conveniently  be  found"  But  it 
is  not  sufficient  to  excuse  personal  demand — when  the 
assessment  is  against  the  owner  by  name — that  the  persons 
assessed,  or  their  agents,  cannot  conveniently  be  found  by 
the  contractor  or  his  agent.  The. fact  that  the  contractor, 
or  his  agent  or  assignee,  cannot  conveniently  find  the  per- 
sons assessed  or  their  agents,  does  not  excuse  personal 
demand.  Guerin  v.  Reese,  33  Cal.  293,  where  it  was  held 
that  the  legal  purpose  of  the  demand  is  to  give  to  the  owner, 
as  far  as  practicable,  actual  notice  of  the  existence  of  the 
lien  created  by  the  assessment  and  resting  upon  his  prop- 
erty, so  as  to  enable  him  to  take  the  proper  steps  for  its 
discharge.  Also,  that  the  warrant  is  a  process  in  the  hands 
of  the  contractor,  which  he  is  required  to  serve,  and  he  will 
be  held  to  the  same  measure  of  diligence  in  its  service  as  is 
an  officer  holding  legal  process  for  service;  that,  in  making 
the  service,  it  is  the  duty  of  the  contractor  (1.)  to  make  a 
reasonable  effort  to  find  and  serve  the  person  assessed;  (2.) 
failing  in  this,  it  is  next  his  duty  to  make  a  like  effort  to 
find  and  serve  the  agent  of  the  person  assessed,  and  (3.)  only 
when  such  first  and  second  efforts  have  failed,  is  he  author- 
ized to  make  service  by  a  public  demand  for  the  assessments 
upon  the  premises  assessed.  Also,  that  the  contractor's 
return  should  show  a  personal  demand  upon  the  person 
assessed,  or  a  satisfactory  reason  why  it  was  not  done,  before 
resorting  to  the  other  modes  of  making  the  demand,  i.  e.,  if 
the  demand  was  not  made  upon  the  person  assessed  because 
he  could  not  conveniently  be  found,  the  returns  should 
show  why  he  could  not  conveniently  be  found,  as,  that  he  is 
a  non-resident  of  the  city  or  state,  or  is  temporarily  absent, 


110    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

or  has  absconded  or  else  should  state  that  "  lie  cannot  be 
found." 

To  the  same  effect  is  the  decision  in  McBean  v.  Martin, 
96  Cal.  188,  where  the  work  was  done,  p,nd  the  proceedings 
had,  under  the  present  street  work  act.  The  court  followed 
the  ruling  in  Guerin  v.  Reese. 

In  Himmelmann  v.  Townsend,  49  Cal.  151,  Mr.  Justice 
McKinstry  gave  it  as  his  opinion  that  if  the  owner  cannot 
conveniently  be  found,  and  the  assessment  is  made  against 
him  by  name,  if  there  is  a  tenant  occupying  the  premises, 
demand  -should  be  made  of  such  occupant  personally.  In 
such  case  the  requirements  of  the  statute  would  not  be 
satisfied  by  a  demand  made  by  the  contractor  standing 
upon  one  corner  of  the  lot  and  speaking  in  a  tone  of  voice 
which,  while  it  might  be  said  to  be  audible,  would  not  be 
audible  to  a  person  upon  the  opposite  corner  of  the  lot,  or 
within  a  dwelling  house  on  the  lot. 

(b.)  Demand  on  the  Premises.  According  to  repeated 
decisions  of  the  Supreme  Court,  the  superintendent  may 
assess  the  lot  to  "unknown"  owners,  and  his  assessment  to 
an  unknown  owner  is  conclusive  evidence,  in  all  collateral 
proceedings — suits  upon  the  assessment  for  example — that 
the  name  of  the  true  owner  was  unknown  to  him;  and, 
when  the  assessment  is  made  to  an  unknown  owner,  the 
contractor  is  only  required  to  "publicly  demand  payment 
on  the  premises  assessed" — in  fact  where  the  assessment  is 
made  to  an  unknown  owner  the  demand  must  be  made 
publicly  upon  the  premises  assessed;  a  personal  demand 
upon  the  owner  made  elsewhere  will  not  suffice.  And,  as 
it  is  a  simple  matter  to  publicly  make  a  demand  upon  the 
premises  assessed,  and  as  it  might  frequently  be  inconven- 
ient to  the  contractor  to  find  the  true  owner,  without  its 
being  a  fact  that  the  true  owner  "can  not  conveniently  be 
found," — within  the  meaning  of  that  phrase  as  construed 
by  the  Supreme  Court  in  said  case  of  Guerin  v.  Reese,  33  Cal. 
293 — it  follows  that  it  is  greatly  to  the  advantage  of  the  con- 
tractor to,  in  all  cases,  make  the  assessments  to  owners 
"unknown."  Besides  which  when  the  assessment  is 
attempted  to  be  made  to  the  true  owner  by  name  the  super- 
intendent takes  the  risk  of  being  mistaken  in  his  supposi- 
tion as  to  who  the  true  owner  is — and  in  a  new  country 
where  titles  are  unsettled  it  is  seldom  that  any  one  can 
know  who  the  true  owner  is  without  a  laborious  search 
of  the  records  and  not  always  even  then.  And,  as 
has  been  frequently  held  since  the  case  of  Smith  v.  Davis, 
30  Cal.  536,  if  the  assessment  purports  to  be  made  to  the 
owner  by  name  it  is  void  unless  the  name  given  is  the 


DEMAND     ON    THE    PREMISES 

name  of  the  true  owner.  Therefore,  by  making  all  assess- 
ments to  unknown  owners,  the  superintendent  avoids  the 
risk  of  assessing  the  property  to  a  person  not  in  fact  the 
true  owner,  and  likewise  enables  the  contractor  to  make 
simply  a  demand  on  the  premises,  thus  saving  him  the 
trouble  of  ascertaining  whether  the  owner  can  conveniently 
be  found  or  not. 

In  Himmelmann  v.  Hoadley,  44  Cal.  214,  it  was  held  that 
the  superintendent,  unless  he  is  satisfied  beyond  all  doubt 
as  to  the  ownership  of  a  lot,  may  assess  it  to  "unknown 
owner,"  and  when  the  assessment  is  made  to  "unknown 
owner,"  payment  may  be  demanded  publicly  upon  the 
premises. 

In  Whiting  v.  Townsend,  57  Cal.  515,  it  was  held  that 
where  the  property  is  assessed  to  unknown  owners  no  per- 
sonal demand  is  required.  And  in  Macadamizing  Co.  v 
Williams,  70  Cal.  534,  it  was  held  that  where  the  assess- 
ment is  made  to  "unknown  owners,"  the  demand  must  be 
made  upon  the  premises.  Mr.  Commissioner  Searls,  in 
that  case,  page  541,  said:  "The  statute  provides  but  one 
mode  of  making  a  demand  in  cases  where,  as  in  the  present 
case,  the  property  is  assessed  to  'unknown  owners/  and 
that  is  by  a  demand  upon  the  premises.  It  matters  not 
that  other  methods  may  be  as  efficacious  as  the  one  pro- 
vided. The  lawmakers  have  prescribed  a  method,  and  the 
courts  are  riot  at  liberty  to  adopt  a  substitute  therefor."  In 
this  case  a  personal  demand  was  made,  and  also  a  demand 
by  a  person  standing  on  the  sidewalk  in  front  of  and  close 
to  the  fence  bordering  the  lots,  but  was  not  actually  made 
upon  them  (unless  such  lots  extended  to  the  middle  of  the 
street).  The  person  making  the  demand  stood  on  the  side- 
walk and  there  made  a  demand  in  an  audible  voice.  The 
point  was  raised  that  under  section  831  of  the  Civil  Code 
the  lots  must  be  presumed  to  extend  to  the  middle  of  the 
street,  and  that,  therefore,  a  demand  made  by  a  person 
standing  on  the  sidewalk  was  a  demand  "on  the  premises," 
but  as  the  complaint  described  the  land  assessed  as 
bounded  by  the  side  line  of  the  adjoining  street,  this  pre- 
sumption was  not  permissible,  under  the  allegations  of 
the  complaint.  It  was  held  that  the  statute  requires 
the  demand  to  be  made  on  the  premises,  and  that 
this  requirement  was  not  met  by  a  demand  made  by  a  per- 
son standing  on  the  sidewalk  —  the  lot  being  held  to  be 
bounded  by  a  side  line  of  the  street  and  not  its  center  line — 
even  though  the  voice  of  the  person  making  the  demand 
could  be  heard  on  the  lot.  Mr.  Commissioner  Searls,  page 
543,  said:  "The  land  is  charged  with  the  payment  of  the 


112          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

assessment,  and  where  the  owner  is  designated  as 
'unknown,'  the  statute  is  imperative  in  requiring  the 
demand  to  be  made  publicly  on  the  premises]  and  a  demand 
made  near  to,  in  the  neighborhood  of  or  within  hearing  of 
the  premises  does  riot  satisfy  the  requirements  of  the 
statute."  The  court  must  determine  whether  the  demand 
was  made  in  a  sufficiently  audible  tone  of  voicp,  and  upon 
this  the  decision  of  the  trial  court  is  necessarily  con- 
clusive. [Himmelman  v.  Booth,  53  Cal.  50.] 

(c.)  By  Whom  Demand  to  be  Made.  When  more  than 
one  person,  either  by  the  original  contract  or  by  assignment 
from  the  contractor,  is  interested  in  a  contract  for  improving 
a  street,  the  demand  is  sufficient  if  made  by  one  alone  of 
the  parties  interested  in  the  contract.  Thus  in  Gaffney  v. 
Donohue,  36  Cal.  104,  Gaffney,  the  contractor,  assigned  one- 
half  interest  in  the  contract  to  Donohue.  Held,  Gaffney, 
after  the  assignment,  could  make  a  legal  demand.  He,  as 
contractor,  is  one  of  the  persons  designated  by  the  statute 
to  make  the  demand.  In  Himmelmann  v.  Woolrich,  45  Cal. 
249,  it  was  objected  that  the  demand  was  made  by  one 
who  was  the  agent  of  the  assignee  and  not  the  agent  of  the 
contractor,  but  it  was  held  that  the  agent  of  the  assignee 
might  make  the  demand  and  return  as  well  as  an  agent  of 
the  contractor.  The  statute  (section  10)  now  expressly 
provides  that  the  demand  might  be  made  by  "the  con- 
tractor, or  his  assigns,  or  some  person  in  his  or  their  behalf." 
And  in  Foley  v.  Bullard,  No.  15,305,  decided  Sept.  11,  1893. 
it  was  held  that  the  demand  was  made  on  behalf  of  the 
assignees  of  the  original  contract,  and  was  in  all  respects  suf- 
ficient, although  the  person  making  the  demand  was  shown 
to  be  the  agent  of  'persons  to  whom  the  assignees  had 
assigned  the  contract  as  security.  This  case  arose  under 
the  street  work  act  now  in  force — the  Vrooman  act — and 
the  court  cited,  with  approval,  the  case  of  Godfrey  v. 
Donohue,  supra. 

(d.)  Amount  of  Demand.  The  demand  must  be  made 
for  the  exact  amount  lawfully  chargeable  against  each  lot,  or, 
at  any  rate,  it  must  not  be  for  an  amount  greater  than  is 
lawfully  chargeable  against  each  lot.  A  demand  for  the 
aggregate  sum  due  on  two  lots  is  insufficient.  The  demand 
should  be  on  each  lot  for  the  amount  assessed  thereon. 
[Schirmer  v.  Hoyt,  54  Cal.  280.] 

If  the  resolution  of  intention  calls  for  the  macadamizing 
of  a  street  and  curbing  the  same,  and  the  contract  is  let 
for  macadamizing  the  sidewalks  as  well  as  the  roadway, 
then,  as  held  in  Himmelman  v.  Satterlee,  50  Cal.  68,  and 
Baudry  v.  Valdez,  32  Cal.  269,  the  resolution  does  not 


AMOUNT    OF    DEMAND 

include  work  on  the  sidewalks,  but  is  limited  to  that  done 
on  the  roadway,  as  the  word  "street,"  as  used  in  section  2 
of  the  act,  in  connection  with  macadamizing,  is  limited  to 
the  roadway,  and  the  assessment  for  work  done  on  the  side- 
walks in  such  case  is  void.  And  if  the  demand  made  by 
the  contractor,  in  such  case,  is  for  the  whole  assessment, 
and  not  for  the  portion  thereof  which  would  be  chargeable 
for  the  work  on  the  roadway,  the  contractor  cannot  recover, 
even  though  the  court  should  find  the  cost  of  the  work  on 
the  roadway  and  that  on  the  sidewalk  separately,  and  even 
though,  as  held  in  Baudry  v.  Valdez,  32  Cal.  209,  the  con- 
tractor may  recover  if  the  whole  assessment  is  severable 
so  as  to  permit  of  a  segregation  of  the  valid  part  from  the 
invalid  part.  The  demand  must  be  for  the  amount  legally 
due  and  chargeable  against  the  lot.  [Dyer  v.  Chase,  52  Cal. 
4  !(>;  Donnelly  r.  Howard,  GO  Cal.  291;  .Dorland  v.  Bergson, 
78  Oal.n.-rT;  see  Partridge  v.  Lucase,  33  Pac.  Rep.  1082.] 

If,  however,  the  assessment  is  severable  and  demand  is 
duly  made  for  the  amount  properly  due  and  chargea-ble 
against  the  land,  or,  if  separate  assessments  have  been  made 
for  different  portions  of  the  work,  and  separate  demands  are 
made  for  the  payment  of  each  assessment,  the  invalidity  of 
one  of  the  assessments  does  not  render  the  other  invalid, 
and  the  contract  may  recover  the  amount  of  the  valid  assess- 
ment. [Parker  v.  Ueay.  7(>  Cal.  103;  Ede  v.  Knight,  93 
Cal.  160.]  In  Parker  v.  Reay,  the  work  consisted  in  con- 
structing basalt  block  gutter-ways,  in  macadamizing  the 
roadway,  and  in  laying  granite  crosswalks.  The  assessment 
for  gutter- ways  and  macadam  were  levied  separately  from 
the  assessment  for  the  crossings.  The  assessment  against 
defendant's  lot  for  crossings  was  void  because  not  made 
against  that  part  only  of  the  lot  contained  in  the  quarter 
block  subject  to  assessments  for  crossings.  The  court  said: 
"This  portion  of  the  assessment,  [i.  e.,  assessment  for  cross- 
ings] was  void,  and  the  demand  therefor  was  invalid;  but 
the  assessment  for  macadam  and  gutter-ways  having  been 
made  separately,  and  for  the  proper  amount,  and  the  proper 
demand  having  been  made,  as  shown  by  the  return,  the 
motion  for  a  non-suit  was  properly  denied,  notwithstanding 
the  invalidity  of  the  assessment  for  work  on  the  crossing." 

II.  Contractor's  Return.  Section  10  provides  that  "the 
warrant  shall  be  returned  to  the  superintendent  of  streets 
within  30  days  after  its  date,  with  a  return  endorsed 
thereon,  signed  by  the  contractor  or  his  assigns,  or  some 
person  in  his  or  their  behalf,  verified  upon  oath,  stating 
the  nature  and  character  of  the  demaiidand_wjiether  any  of 
the  assessments  remain  unpaid,  h^^SSi^Or  in  part,  and 


114         STREET  WORK  LAW STREET   IMPROVEMENT    ACT 

the  amount  thereof."  It  is  absolutely  essential  that  such 
return  should  be  made  within  thirty  days  after  the  date  of 
the  warrant  and  also  in  the  form  prescribed  by  the  statute, 
as  the  section  (section  10)  likewise  provides  that  "if  any 
contractor  shall  fail  to  return  his  warrant  within  the  time 
and  in  the  form  provided  in  this  section  he  shall  thenceforth 
have  no  lien  upon  the  property  assessed." 

III.  Return  as  Evidence   of  Demand.     The    affidavit    of 
demand,  indorsed  upon  the  warrant,  is  prima  facie  evidence 
of  such  demand.     In   Dyer  v.   Brogan,  57  Gal.  234,  it  was 
held  that  such  affidavit  is  prima  facie  evidence  of  demand 
under  section  11  of  the  act  of  1872  [Statutes  1871-2,  pages 
814,  815,]  and  as  section  11  of  the  act  of  1872  is  substan- 
tially   identical    with    section    10   of  the  act  of  March  18, 
1885,  except  with   respect  to   the    time    within    which    the 
return  is  to  be  made  and  the  rate   of    interest,  it  follows 
that  if  that  decision  be  correct    the    return    is,  under  the 
present  street  law,  prima  facie  evidence  of  demand  likewise. 
[See  also  Himmelmann  v.  Hoadley,  44  Cal.  214.]     In  Deady 
v.  Townsend,  57  Cal.  298,  it    was    held   that  the  affidavit  of 
demand,  indorsed  on  the  return,  is  prima  facie  evidence  of 
such  demand,  though  made  by    an  agent  of  the  contractor. 
In    Whiting  v.  Townsend,  57    Cal.   515,   it    was  held  that 
the  statement  by  affiant    in    his  affidavit  that  he  was  the 
agent  of  the  contractor  is  prima  facie  evidence  that  he  was 
such  agent.     [See  Himmelmann  v.  Woolrich,  45  Cal.  249.] 
In  Ede  v.  Knight,  93  Cal.  160,  it  was  held   that  the  verified 
return  of  the  contractor,  stating  that  he  went  upon  each  of 
the  lots  exhibited  in    the   diagram,  and  publicly  demanded 
on  each  lot  payment  of  the  sum  assessed  to  each  is  prima 
facie   evidence    of  the    facts    stated,  and,   if  not   disputed, 
shows  a  proper  demand.     See  section   12  of  the  act,  where 
it    is  said:    "The  said   warrant,  assessment,  certificate   and 
diagram,  with  the  affidavit   of  demand  and    non-payment, 
shall  be  held  prima  facie    evidence    of  the    regularity  and 
correctness  of  the  assessment,  etc.,     *     *     *     and  like  evi- 
dence of  the  right  of  the  plaintiff  to  recover  in  the  action." 

IV.  Recording  the  Return.    The  last  act  necessary  to  the 
existence  of  a  valid  right  in  the  contractor  to  successfully 
maintain  suit  against  the  lot  owner  to  recover  the  amount 
of  the  assessment  lien,  is  the  recordation  of  the  return,  and 
also  of    the  original  contract,  if    it    has  not    already  been 
recorded.  The  act  (section  10)  provides,  that,  upon  return  of 
the  warrant  being  made  to  the  superintendent  of  streets,  he 
"shall  record  the  return  so  made,  in  the  margin  of  the  record 
of  the  warrant  and  assessment,  and  also  the  original  con- 
tract referred  to  therein,  if  it  has  not  already  been  recorded, 


TA.T*PTJM->  v«rp  Sec  10,  Act  of       1  1  fX 

INTEREST  \1nrfh  IP    1SK*  1JLO 


Marcfc  18,  1885. 


at  full  length  in  a  book  to  be  kept  for  that  purpose  in  his 
office,  and  shall  sign  the  record." 

In  the  notes  to  section  9,  it  is  stated  that  it  is  essential  to 
the  existence  of  a  valid  assessment  lien  that  the  warrant, 
assessment,  diagram  and  certificate  of  the  engineer  should, 
before  delivery  to  the  contractor  or  his  assigns,  be  recorded 
by  the  superintendent  in  a  book  kept  by  him  for  that  pur- 
pose in  his  office,  and  also  that  it  is  essential  to  the  record- 
ing of  these  documents  that  they  should  not  only  be  copied 
in  full  into  the  record  book,  but  that  such  copy  should  be 
authenticated  by  the  signature  of  the  superintendent  or  of  a 
duly  authorized  deputy,  as,  without  such  signature,  authen- 
ticating such  copy,  there  is  no  record.  Section  10  of  the 
act  provides  for  a  completion  of  this  record  by  the  record- 
ing of  the  contractor's  "return"  in  the  margin  of  the  record 
of  the  warrant  and  assessment,  and  likewise  the  original 
contract,  if  not  already  recorded.  The  proper  recording  of 
the  warrant,  assessment,  diagram  and  certificate  of  the  city 
engineer,  as  provided  for  by  section  9,  is  necessary  to  the 
existence  of  a  valid  lien,  and  the  recording  of  the  return 
and  the  original  contract,  after  the  contractor  has  returned 
the  warrant  to  the  superintendent  of  streets,  with  a  return 
endorsed  thereon,  is  essential  to  the  existence. of  a  right  to 
maintain  a  suit  on  the  lien. 

When  the  sworn  return  and  the  original  contract  are 
recorded  in  the  office  of  the  street  superintendent,  a  certifi- 
cate of  their  recording  should  be  attached  to  the  same, 
signed  by  the  superintendent  or  an  authorized  deputy. 
Without  such  authentication  they  cannot  be  deemed  to  be 
recorded.  [Himmelman  v.  Danos,  35  Gal.  441;  Hirnmel- 
mruin  v.  Hoadley,  44  Cal.  213;  Shepard  v.  McNeil,  38  Gal. 
73.  See  supra,  pages  102-105.J 

The  statute  does  not  prescribe  any  time  within  which  the 
return  or  affidavit  of  demand  shall  be  recorded  by  the  street 
superintendent,  and  if  it  is  not  recorded  until  two  months 
after  the  return  is  made,  it  will  not  vitiate  the  proceedings, 
[llimmelmann  v.  Reay,  38  Cal.  163. J 

V.  Interest.  Section  10  likewise  provides  that  ''after 
the  return  of  the  assessment  and  warrant  as  aforesaid,  all 
amounts  remaining  due  thereon  shall  draw  interest  at  the 
rate  of  ten  per  cent,  per  annum  until  paid." 

In  the  absence  of  a  provision  in  the  statute  allowing 
interest  on  street  assessments,  the  city  council  can  not 
impose  interest  as  a  penalty  for  non-payment.  [Weber  v. 
City  of  S.  F.,  1  Cal.  455;  see  also  Bucknall  v.  Story,  36  Cal. 
67.]  Although  a  judgment  for  street  assessments  may  draw 
interest  from  the  time  of  its  rendition.  [Sec.  1920  Civil 


116    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

Code;  Himmelman  v.  Oliver,  34  Cal.  246;  Randolph  v. 
Bayue,  44  Cal.  366.]  If  street  work  is  done  under  an  act 
which  does  not  make  any  provision  for  interest  upon  the 
assessments,  and  subsequently  an  act  is  passed  providing 
that  after  the  return  of  the  assessment  and  warrant,  all 
amounts  remaining  due  thereon  shall  draw  interest  at  a 
certain  rate,  and  the  assessment  for  such  work  is  made 
after  the  passage  of  this  latter  act,  the  contractor  will  be 
entitled  to  interest  upon  the  assessment  as  provided  by  such 
latter  act.  The  reason  for  this  rule  is  that  there  is  no  con- 
tract between  the  contractor  and  the  property  owners, 
and  therefore  no  obligation  of  any  contract  is  im- 
paired. The  property  owner  has  the  opportunity,  and 
it  is  his  duty  to  pay  before  the  return  of  the  warrant,  and 
if  he  does  not  do  so  the  legislature  may  enact  *that  if  he 
neglects  this  duty,  the  amount  due  shall  thereafter  bear 
interest.  [Dougherty  v.  Henaire,  47  Cal.  9.]  Section  12 
of  the  act  expressly  provides  that  in  any  suit  upon  the 
assessment  the  contractor  may  "recover  the  amount  of  any 
assessment  remaining  unpaid,  with  interest  thereon  at  the 
rate  of  ten  per  cent,  per  annum  until  paid." 

SECTION  11.  The  owners,  whether  named  in  the  assessment  or  not,  the 
contractor,  or  his  assigns,  and  all  other  persons  directly  interested  in  any 
work  provided  for  in  this  act,  or  in  the  assessment,  feeling  aggrieved  by 
any  act  or  determination  of  the  superintendent  of  streets  in  relation 
thereto,  or  who  claim  that  tne  work  has  not  been  performed  according  to 
the  contract  in  a  good  and  substantial  manner,  or  having  or  making  any 
objection  to  the  correctness  or  legality  of  the  assessment  or  other  act 
determination,  or  proceedings  of  the  superintendent  of  streets,  shall, 
within  thirty  days  after  the  date  of  the  warrant,  appeal  to  the  city  council, 
as  provided  in  this  section,  by  briefly  stating  their  objections  in  writing, 
and  filing  the  same  with  the  clerk  of  said  city  council.  Notice  of  the  time 
and  place  of  the  hearing,  briefly  referring  to  the  wcrk  contracted  to  be 
done,  or  other  subject  of  appeal,  and  to  the  acts,  determinations,  or  pro- 
ceedings objected  to  or  complained  of,  shall  be  published  for  five  days. 
Upon  such  appeal,  the  said  city  council  may  remedy  and  correct  any  error 
or  informality  in  the  proceedings,  and  revise  and  correct  any  of  the  acts 
or  determinations  of  the  superintendent  of  streets  relative  to  said  work ; 
may  confirm,  amend,  set  aside,  alter,  modify,  or  correct  the  assessment  in 
such  manner  as  to  them  shall  seem  just,  and  require  the  work  to  be  completed 
according  to  the  directions  of  the  city  council;  and  may  instruct  and 
direct  the  superintendent  of  streets  to  correct  the  warrant,  assessment,  or 
diagram  in  any  particular,  or  to  make  and  issue  a  new  warrant,  assessment 
and  diagram,  to  conform  to  the  decisions  of  said  city  council  in  relation 
thereto,  at  their  option.  All  the  decisions  and  determinations  of  said  city 
council,  upon  notice  and  hearing  as  aforesaid,  shall  be  final  and  conclusive 
upon  all  persons  entitled  to  appeal  under  the  provisions  of  this  section,  as 
to  all  errors,  informalities,  and  irregularities  which  said  city  council  might 


APPEAL    PROVIDED    BY    SECTION    ELEVEN 

have  remedied  and  avoided;  and  no  assessment  shall  be  held  invalid, 
except  upon  appeal  to  the  city  council,  as  provided  in  this  section,  for  any 
error,  informality,  or  other  defect  in  any  of  the  proceedings  prior  to  the 
assessment,  or  in  the  assessment  itseli,  where  notice  of  the  intention  of 
the  city  council  to  order  the  work  to  be  done,  for  which  the  assessment  is 
made,  has  been  actually  published  in  any  designated  newspaper  of  said 
city  for  the  length  of  time  prescribed  by  law,  before  the  passage  of  the 
resolution  ordering  the  work  to  be  done.  [Statutes  1885,  p.  156.] 
[Section  11  of  the  act  of  March  18,  1885,  never  has  been  amended.] 

I.  Differences  Between  the  "Appeal"  Provided  for  by  Sec- 
tion Eleven  and  the  "Petition  of  Remonstrance"  Provided  for 
by  Section  Three.  Section  11  of  the  act  provides  for  an 
appeal  to  the  city  council,  and  as  tHere  is  no  other  remedy 
when  tin  appeal  lies  [Dorland  v.  McGlynn,  47  Cal.  48,  51], 
it  follows  that  it  is  very  important  to  ascertain  when  an 
appeal  should  be  taken.  The  section  provides  that  an 
appeal  may  be  taken  by  three  classes  of  persons,  viz:  (1.) 
the  owners,  whether  named  in  the  assessment  or  not;  (#.) 
the  contractor  or  his  assigns,  and  (#.)  all  other  persons 
directly  interested  in  any  work  provided  for  in  the  act,  or 
in  the  assessment. 

The  "petition  of  remonstrance,"  provided  for  in  section  3 
of  the  act,  differs  in  at  least  three  important  respects  from 
the  "appeal"  provided  for  by  section  11,  viz:  (1.)  as  to  the 
classes  of  persons  by  whom  they  may  be  taken  or  prosecuted; 
(2.)  as  to  the  time  within  which  they  must  be  taken  or 
prosecuted;  and  (3.)  as  to  the  persons  whose  acts  may  be 
complained  of. 

(a.)  Classes  of  persons  by  whom  a  remonstrance  may  be 
filed  or  an  appeal  be  taken.  An  appeal  under  section  11 
may  be  taken  by  (1.)  the  owners,  whether  named  in  the 
assessment  or  not;  (2.)  the  contractor  or  his  assigns,  or,  (3.) 
all  other  persons  directly  interested  in  any  work  or  in  the 
assessment;  whereas,  section  3  only  makes  provision  for  a 
petition  of  remonstrance  by  owners  whose  lots  are  liable  to 
assessment. 

(b.)  Time  within  which  an  appeal  may  be  taken  or  a 
remonstrance  filed.  Section  11  provides  that  an  appeal  may 
be  taken  at  any  time  within  thirty  days  after  the  date  of 
the  ivarrant.  Section  3  provides  that  "at  anytime  before  the 
issuance  of  the  assessment  roll,  all  owners  of  lots  or  lands 
liable  to  assessment  therein  who  *  *  *  *  may  feel 
aggrieved  *  *  *  shall  file  with  the  clerk  a  petition  of 
remonstrance." 

(c.)  Persons  whose  acts  may  be  complained  of  on  appeal  and  on 
petition  of  remonstrance.  Section  1 1  provides  that  the  persons 
entitled  to  appeal  under  that  section,  "feeling  aggrieved  by 


118    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

an  act  or  determination  of  the  superintendent  of  streets  in 
relation  thereto,  or  who  may  clai  m  that  the  work  has  not  been 
performed  according  to  the  contract  in  a  good  and  substan- 
tial manner,  or  having  or  making  any  objection  to  the  cor- 
rectness or  legality  of  the  assessment,  or  other  act,  deter- 
mination or  proceedings  of  the  superintendent  of  streets,  shall 
*  *  *  appeal;"  etc.  Section  3  provides  that  "all  owners 
of  lots  or  lands  liable  to  assessment,  *  *  *  who,  after 
the  first  publication  of  said  resolution  of  intention,  may  feel 
aggrieved,  or  who  may  have  objections  to  any  of  the  subse- 
quent proceedings  of  said  council,  *  *  *  shall  file  with 
the  clerk  a  petition  of  remonstrance/'  etc.  Section  11 
allows  objections  to  be  presented  to  any  act  or  determina- 
tion of  the  superintendent  of  streets,  or  to  the  failure  of  the 
contractor  to  execute  his  contract  faithfully.  Section  3  con- 
fines the  objections  which  may  be  made  on  petition  of 
remonstrance  to  the  proceedings  of  the  council. 

It  was  in  view  of  these  distinguishing  characteristics 
between  the  "petition  of  remonstrance,"  provided  for  by 
section  3  of  the  act,  and  the  "appeal,"  provided  for  by  sec- 
tion 11,  that  Mr.  Justice  Shafter  used  the  following  lan- 
guage in  Nolan  v.  Reese,  32  Cal.  487,  in  determining 
whether  a  fraudulent  side  agreement  was  fatal  to  the 
assessment  or  whether  an  appeal  to  the  council  was  the 
only  remedy.  [See  such  fraudulent  side  agreements  con- 
sidered supra,  page  55.]  Said  the  learned  justice  in  Nolan  v. 
Reese,  page  487:  "Should  the  fraud  with  vvhich  the  con- 
tractor was  charged  be  considered  as  affecting  the  'award 
of  the  work'  to  him  by  the  board  of  supervisors  [Section  6 
of  the  act  of  1862;  section  5  of  the  Vrooman  act],  then, 
under  the  fourth  section  of  the  act  [Section  3  of  the  Vroo- 
man act],  it  should  have  been  brought  to  the  notice  of 
the  board  of  supervisors  by  a  remonstrance  coming  from 
one  or  more  of  the  lot  owners.  If,  on  the  other  hand,  the 
fraud  is  considered  as  affecting  the  'legality  of  the 
assessment,'  then  any  person  having  objections  to  make 
should  have  appealed  to  the  board  of  supervisors  within 
thirty-five  days  subsequent  to  the  date  of  the  assessment. 
[Section  12  of  the  act  of  1862;  section  11  of  the  Vrooman 
act.]  Such  are  the  methods  pointed  out  by  the  act  for 
reviewing  the  decisions  of  the  board  and  the  acts  of  the 
superintendent,  and  they  exclude  all  others  by  positive  pro- 
vision." 

II.  Other  Provisions  of  Section  Eleven.  Section  11 
also  provides:  (1.)  How  the  appeal  shall  be  taken;  (2.)  the 
powers  of  the  council  upon  the  appeal  and  that  its  decis- 
ion shall  be  final  and  conclusive,  and  (3.}  the  effect  of 


APPEALS    UNDER    PRIOR    ACTS  S£S'iJL?MK        119 


not  appealing.  Under  the  third  head,  the  section  provides 
that  "no  assessment  shall  he  held  invalid  except  upon 
appeal  to  the  city  council,  as  provided  in  this  section,  for 
anv  error,  informality  or  other  defect  in  any  of  the  pro- 
ceedings prior  to  the  assessment,  or  in  the  assessment 
itself,  where  notice  of  the  intention  of  the  city  council  to 
order  the  work  to  be  done  for  which  the  assess- 
ment is  made,  has  been  actually  published  in  any  desig- 
nated newspaper  of  said  city  for  the  length  of  time  pre- 
scribed by  law,  before  the  passage  of  the  resolution 
ordering  the  work  to  be  done."  According  to  the  letter 
of  this  part  of  the  section,  no  error,  informality  or  defect, 
even  though  jurisdictional  in  its  character,  and  of  vital 
importance  to  the  property  owners,  can  operate  to  defeat 
an  assessment, — provided  notice  of  intention  has  been 
published  as  provided  in  the  act, — unless  upon  appeal 
to  the  council.  This  provision  is  not  found  in  the  prior  acts. 
But,  according  to  recent  authorities,  construing  this  part 
of  the  act,  and  cited  infra,  such  a  literal  interpretation  of 
the  section  is  not  the  correct  construction.  [See  supra, 
pages  16-17,  under  the  caption  "Jurisdiction"]  If,  sub- 
sequent to  the  publication  of  the  notice  of  intention, 
i.  e.j  if,  after  a  resolution  of  intention  in  due  form 
has  been  passed,  posted  and  published  and  notice 
thereof  posted  and  published  as  provided  for  by  sec- 
tion 3  of  the  act,  there  is  any  jurisdictional  error, 
which  is  past  correction  by  the  council  upon  appeal, 
— e.  g.,  if  the  contract  be  void  because  let  for  less 
work  than  is  described  in  the  resolution  and  order,  and  the 
assessment  is,  therefore,  illegal, — the  owner  is  not  required 
to  appeal;  and,  notwithstanding  such  failure  to  appeal,  he 
may  defeat  all  actions  upon  such  illegal  assessment.  The 
important  question,  therefore,  is,  in  what  cases  is  an  appeal 
the  exclusive  remedy? 

III.  Principles  Governing  Appeal  Under  Prior  Street 
Improvement  Acts.  In  Emery  v.  Bradford,  29  Gal.  75, the  court 
held  that,  under  the  San  Francisco  street  work  act  of  1862,  if 
an  owner  is  dissatisfied  with  the  decision  of  the  superintend- 
ent of  streets  that  the  contractor  has  fulfilled  his  contract,  his 
only  remedy  is  an  appeal  from  such  decision  to  the  board 
of  supervisors  of  the  city  and  county  of  San  Francisco. 
And  on  page  86,  the  court,  per  Sawyer,  J.,  said:  "  An  error 
of  the  superintendent  in  the  respect  complained  of  can  be 
corrected  on  appeal.  *  *  *  This  conclusive  determina- 
tion on  appeal  doubtless  refers  to  those  matters  upon  which 
the  superintendent  is  required  in  the  discharge  of  his 
duties  to  exercise  his  judgment — those  matters  in  which  his 


120          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

errors  are  to  be  revised  and  corrected.  There  are  acts  to  be 
performed  of  a  jurisdiction al  character  essential  to  the 
validity  of  any  assessment.  It  is  not  to  be  supposed  that 
the  conclusiveness  of  the  decision  of  the  board  of  super- 
visors is  to  extend  to  that  class  of  acts.  The  provisions  in 
section  twelve  [section  12  of  the  act  of  1862  is  the  section 
corresponding  with  section  11  of  the  present  street  work  act] 
indicate  the  kind  of  errors  upon  which  the  decisions  of  the 
board  are  to  be  final.  It  is  that  'all  the  decisions  and 
determinations  of  said  board,  upon  notice  and  hearing  afore- 
said, shall  be  final  and  conclusive  upon  all  persons  entitled 
to  an  appeal  under  the  provisions  of  this  section,  as  to  all 
errors  and  irregularities  which  said  board  could  have 
avoided.'  Now,  this  would  not  include  jurisdictional  acts, 
which  it  would  be  too  late  to  remedy  after  the  time  for 
appeal  had  arrived."  The  court  further,  considering  the 
question  immediately  before  it,  said:  "  But  an  error  in 
determining  whether  the  contract  has  been  in  all  respects 
performed,  is  not, one  of  the  jurisdictional  defects  that  could 
not  be  remedied.  The  power  to  direct  the  improvement  of 
streets,  and  to  make  or  authorize  the  making  of  contracts 
therefor^,  is  properly  vested  in  the  board  of  supervisors, 
and  it  would  seem  to  follow  necessarily,  that  the  authority 
to  ultimately  determine  whether  or  not  the  contract  has 
been  fulfilled,  should  be  vested  in  the  same  body  that  has 
the  power  to  order  and  make  the  contracts." 

In  Dougherty  v.  Hitchcock,  35  Gal.  512,  the  contract  was 
for  less  work  than  that  described  in  the  resolution  of  inten- 
tion and  order  for  the  work  to  be  done.  It  was,  therefore, 
unauthorized  and  void,  [see  supra  pages  53—54]  and  it  was 
held  that  in  such  case  under  the  act  of  1862, — the  act  under 
which  the  proceedings  were  had, —  this  defect  was  not  cured 
by  a  failure  to  appeal.  On  page  524  Mr.  Justice  Rhodes  said: 
"A  contract  authorized  and  executed  in  the  mode  prescribed 
by  the  act  is  indispensable  to  the  validity  of  the  assessment. 
This  defect  is  not  cured  by  the  failure  of  the  lot  holders  to  ap- 
peal to  the  board,  because  had  an  appeal  been  taken,  the 
defect  could  not  have  been  remedied  by  the  board."  And 
on  page  526,  Sawyer,  J.,  said:  "The  contract  sued  on 
was,  therefore,  unauthorized.  The  defect  is  not  one  that 
could  be  cured  by  appeal,  for  ivhen  the  time  Jor  appeal  came 
the  work  was  done  and  the  mischief  past  remedy.  The  con- 
tract made,  did  not  pursue  the  authority,  and  was,  there- 
fore, wholly  unauthorized.  By  the  course  pursued,  the 
property  holders  were  deprived  of  an  opportunity  to  avail 
themselves  of  important  rights,  which  the  statute  secures  to 


RULES    OF    APPEAL    UNDER    PRIOR    ACTS       MarJh  I^ISS? 

them  as  a  condition  precedent  to  the  levy  of  a  valid  assess- 
ment upon  their  property." 

In  Burke  v.  Turney,  54  Gal.  486,  the  superintendent 
entered  into  the  contract  prematurely,  and  the  contract  was 
therefore  void.  [See  supra  page  51.]  Upon  this  part  of  the 
case,  the  court,  per  McKinstry,  J.,  said:  "The  superintend- 
ent had  no  power  to  enter  into  the  contract  until  after  the 
expiration  of  the  five  days."  Plaintiff  urged,  however,  that 
the  defendant's  failure  to  appeal  cut  off  this  defense.  On  this 
branch  of  the  case,  Mr.  Justice  McKinstry  said:  "The  pre- 
mature action  of  the  superintendent  was  one  which  affected 
his  power  or  jurisdiction.  His  action  was  void,  and  that  which 
W&6  void  does  not  become  valid  by  reason  of  a  failure  to  ap- 
peal. The  property  owners  were  not  aggrieved  find  the  failure 
of  the  contractor  to  appeal  did  not  operate,  1st,  to  create  a 
grievance  on  the  part,  of  the  defendants,  and  2nd,  to  estop 
them  from  complaining  of  it." 

In  Chambers  v.  Saiterlee,40  Gal.  497,  Mh  Justice  Wallace, 
pa<2y  frJO,  said:  "  \Ye  think  that  while  the  statute  intended 
to  leave  open  for  judicial  inquiry  all  questions  which  can 
In-  >aid  to  be  of  a  jurisdictional  character,  its  purpose  was 
to  submit  all  other  questions  to  the  decision  of  the  board 
itself."  And  on  page  i~y!4,  Mr.  Justice  Temple  said,  in  ref- 
erence to  the  decision  in  Dougherty  v.  Hitchcock,  35  Gal. 
512:  "In  that  case  it  is  said,  in  reference  to  an  objection 
somewhat  similar,  that  when  the  appeal  came, the  work  was 
done  and  the  mischief  past  remedy.  It  is,  hoivever,  impli- 
ed I  y  admitted  that  if  the  mischief  could  have  been  reme- 
died,, the  answer  to  the  objection  would  have  been  good." 
And  on  page  526,  the  same  justice  said:  "I  have  no  doubt 
but  that  this  right  [the  right  of  appeal]  is  exclusive  of  any 
other  remedy  as  to  all  matters  which  can  be  revised  and  cor- 
rected on  such  an  appeal." 

The  foregoing  cases  were  decided  under  statutes  similar 
in  many  respects  to  the  present  street  work  act;  and  the 
principles  which  seem  to  be  deducible  from  these  cases,  by 
which  to  determine  whether  an  appeal  is  the  exclusive 
remedy  or  not,  are  as  follows: 

1.  The    right    of  appeal    refers    to    those  matters  upon 
which  the    superintendent   of  streets    is  required  in  the  dis- 
charge of  his  duties  to  exercise  his  judgment — as,  for  exam- 
ple, whether  the  work  has  been  properly  done  or  not — and 
all  matters  not  of  a  jurisdictional  character. 

2.  The  right  of  appeal  does  not  refer  to  those  matters  of 
a  jurisdictional  character   essential  to    the   validity    of    the 
contract,    which    it    would    be    too  late  to  remedy  after  the 
time  for  appeal  had    arrived — as,  for  example,  the  require- 


122          STREET  WORK  LAW STREET    IMPROVEMENT   ACT 

ment  that  the  contract  shall  be  authorized  by  the  resolution 
of  intention  and  order  of  award. 

If  the  irregularity  or  omission  affect  the  power  or 
jurisdiction  of  the  superintendent,  so  that  his  act  is  void, 
and  the  mischief  past  remedy,  it  cannot  be  waived  by  a 
failure  to  appeal. 

3.  The  failure  to  appeal  cannot  operate  as  a  waiver  of 
the  right  to  object  to  an  assessment  when  the  omission  or 
irregularity  is  one  affecting  the  substantial  rights  of  the 
property  owners,  if  the  omission,  error  or  irregularity 
occurs  at  such  a  stage  of  the  proceedings  that  it  could  not 
be  remedied  after  the  time  for  appeal  had  arrived.  As,  for 
example,  if  the  contract  should  be  for  less  work  than  that 
described  in  the  resolution  of  intention  and  order  awarding 
the  contract.  In  such  case  the  contract  would  be  void;  the 
work  would  be  done  under  a  void  contract,  and  when  the 
time  for  appeal  had  arrived — within  thirty  days  after  the 
date  of  the  warrant — the  work  would  be  done  and  the  mis- 
chief past  remedy. 

4-  If,  however,  the  error  or  irregularity  complained  of 
has  occurred  in  such  a  stage  of  the  proceedings  that  it 
might  have  been  remedied  or  avoided  by  the  city  council 
on  appeal,  then  it  seems  that  an  appeal  to  the  city  council 
is  the  exclusive  remedy  of  the  "aggrieved"  property 
owner,  even  though  the  alleged  error  or  irregularity  be  one 
which  might  be  considered  as  affecting  his  substan- 
tial rights.  As,  for  example,  if  all  the  j'irisdictional 
prerequisites  to  the  existence  of  a  valid  contract 
have  been  regularly  complied  with,  and  the  work  has 
been  properly  done  within  the  time  allowed  by  law  and 
the  contract,  but  the  assessment  is  irregular  by  reason  of 
some  omission  or  defect  therein,  provided  the  property 
assessed  is  liable  to  assessment,  is  sufficiently  described 
and  the  owner  thereof  is  assessed  in  his  true  name  or 
under  the  designation  "unknown."  [See  supra,  pp.  94-97.] 

In  short,  the  question  as  to  whether  or  not  an  appeal  to 
the  council  is  the  exclusive  remedy  in  any  case,  involves 
and  includes  two  other  subordinate  questions,  viz.:  (1.)  Is 
the  error  or  irregularity  complained  of  jurisdictional,  i.  e., 
does  it  affect  the  power  of  the  council  to  award  the  contract, 
or  of  the  superintendent  to  make  an  assessment?  and  (2.) 
is  the  error  or  irregularity  complained  of  pust  remedy?  If 
the  error  or  irregularity  complained  of  is  jurisdictional, 
and  if  it  would  be  too  late  to  remedy  it,  after  the  time  for 
appeal  has  arrived,  then  a  failure  to  appeal  is  not  a  waiver 
of  the  right  of  the  property  owner  to  resist  payment  of 
the  alleged  assessment. 


RULES  OF  APPEAL  UNDER  PRIOR  ACTS   u*r™'  it^ss*.   123 


In  Dehail  v.  Morford,  95  Gal.  460,  Mr.  Justice  Harrison 
said:  "For  the  purpose  of  acquiring  jurisdiction  every 
requirement  [of  the  statute]  must  be  regarded  as  of  equal 
necessity."  This  language  was  used  in  connection  with 
the  street  opening  act  of  March  6,  1889.  [Statutes  1889,  page 
70.]  But  in  so  far  as  it  serves  to  show  what  are  the  neces- 
sary jurisdictionaJ  requirements  it  is  as  applicable  to  the 
Vrooman,  or  street  impiovement  act,  —  the  act  of  March  18, 
1885,  —  as  to  the  street  opening  act.  In  Nicolson  Pave- 
ment Co.  v.  Painter,  35  Cal.  705,  Mr.  Justice  Sanderson 
said:  "In  the  matter  of  street  improvements  the  board  of 
supervisors  have  whatever  power  the  statutes  upon  that  sub- 
ject have  conferred  upon  them,  and  no  other;  the  power 
which  they  possess  must  be  exercised  in  the  mode  pre- 
scribed by  the  statute,  and  in  no  other;  the  mode  in  such 
cases  constitutes  the  measure  of  poiuer."  And  in  Shipman  v. 
Forbes,  97  Cal.  572,  Mr.  Justice  Harrison  says:  "In  matters 
of  this  character  in  which  the  property  of  a  citizen  is  to  be 
taken  in  invitum  it  cannot  be  said  that  any  requirement  of 
the  statute  is  to  be  disregarded.  Every  requisite  having 
the  semblance  of  benefit  to  the  owner  must  be  complied 
with;  and  when  the  form  of  a  statutory  proceeding  is  pre- 
scribed, its  observance  becomes  essential  to  the  validity  of 
the  proceedings." 

As  stated  above,  the  question  whether  or  not  an 
appeal  to  the  council  is  the  exclusive  remedy  in  any 
case,  involves  two  subordinate  questions,  viz:  (1.)  Is  the 
error,  omission  or  irregularity  complained  of  jurisdictional? 
and  (2.)  Is  it  past  remedy?  And  these  quotations 
from  Dehail  v.  Morford,  Nicolson  Pavement  Co.  v.  Painter, 
and  Shipman  v.  Forbes,  have  been  given  for  the  purpose  of 
showing  what  requirements  are  jurisdictional.  According 
to  the  language  of  Mr.  Justice  Harrison  in  Shipman  v. 
Forbes,  "  every  requisite  having  the  semblance  of  benefit 
to  the  owner"  is  jurisdictional. 

But,  though  every  requirement  of  the  statute  having  the 
semblance  of  benefit  to  the  owner  may  be  jurisdictional, 
and  of  equal  necessity,  —  as  stated  by  Mr.  Justice  Harrison 
in  Dehail  v.  Morford  and  Shipman  v.  Forbes  —  still  it  does 
not  necessarily  follow  therefrom  that  such  irregularity  may 
not  be  waived  by  a  failure  to  appeal.  Since  it  seems 
that  a  failure  to  appeal  is  a  waiver  of  the  irregularity, 
if  it  was  possible  for  the  council  to  have  remedied  and  cor- 
rected it  when  the  time  for  appeal  arrived,  so  as  to  restore 
or  preserve  to  the  property  owner  all  the  rights  or  bene- 
fits secured  to  him  by  the  statute.  The  council  on  appeal 
is,  it  seems,  the  proper  and  exclusive  tribunal  for  the  liti- 


124         STREET  WORK  LAW — -STREET   IMPROVEMENT    ACT 

gation  of  all  such  questions,  and  the  correction  of  all  such 
errors  as  occur  at  such  a  stage  of  the  proceedings  that  they 
are  capable  of  correction  by  the  council  on  appeal  when  the 
time  for  appeal  arrives.  When  the  mischief  is  past  remedy, 
and  the  error  or  irregularity  complained  of  affects  substan- 
tial rights,  or  consists  in  the  omission  of  some  requirement 
of  the  act  which  has  the  semblance  of  benefit  to  the  owner, 
then  and  only  then  is  the  error,  irregularity  or  omission 
fatal,  and  not  waived  by  a  failure  on  the  part  of  the  prop- 
erty owner  to  appeal  to  the  council. 

It  would  seem,  therefore,  that  if  any  of  the  requirements 
necessary  to  the  existence  of  a  valid  contract  has  been  omit- 
ted, the  property  owner  may  defeat  an  action  upon  the 
assessment,  even  though  he  has  taken  no  appeal  to  the 
council,  since  in  such  case  the  mischief,  it  would  seem, 
would  be  past  all  possibility  of  remedy.  [See  supra  pages 
18,  19  and  44,  for  an  enumeration  of  the  jurisdictional  pre- 
requisites to  a  valid  contract.]  In  fact,  section  11  of  the 
present  street  improvement  act  seems  to  contemplate  an 
"appeal"  only  where  the  act  or  omission  complained  of  is 
the  "act,  determination  or  proceedings  of  the  superintend- 
ent of  streets,"  and,  prior  to  the  execution  of  the  written 
contract,  all  proceedings  are  done  by  or  under  the  direction 
of  the  city  council — not  the  superintendent  of  streets. 

In  Emery  v.  Bradford,  29  Cal.  75,  Mr.  Justice  Sawyer,  on 
page  86,sfiid:  "An  error  of  the  superintendent  in  the  respect 
complained  of  can  be  corrected  on  appeal.  *  *  *  This 
conclusive  determination  on  appeal  doubtless  refers  to 
those  matters  upon  which  the  superintendent  is  required  in 
the  discharge  of  his  duties  to  exercise  his  judgment — those 
matters  in  which  his  errors  are  to  be  revised  and  corrected." 

Property  owners  who  may  have  objections  to  any  of  the 
proceedings  of  the  council  between  the  first  publication  of 
the  resolution  of  intention  and  the  issuance  of  the  assess- 
ment roll,  may  file  with  the  clerk  the  "petition  of  remon- 
strance," provided  for  by  section  3  of  the  act.  Such  objec- 
tions are  reached  by  a  "  petition  of  remonstrance,"  and  not 
by  "appeal."  [See  supra  pp.  117-118.] 

On  the  other  hand,  if  all  the  requirements  leading  up  to 
the  execution  of  a  valid  contract  have  been  properly  com- 
plied with,  if  the  counciL  had  jurisdiction  to  award  the 
contract,  and  if  after  due  publication,  etc.,  the  superintend- 
ent has  executed  a  valid  contract  following  the  award,  and 
if  the  work  has  been  properly  done  under  the  contract,  an 
appeal  would  seem  to  be  the  sole  remedy  for  an  omission  of 
any  of  the  requirements  provided  for  by  section  8  of  the  act 
as  essentials  to  the  existence  of  a  valid  assessment,  provided 


RULES    OF    APPEAL    UNDER    PRIOR    ACTS 

the  omission  might  have  been  remedied  or  corrected  by  the 
council  when  the  time  to  appeal  arrived, and  provided,  also, 
that  the  property  owner  was  a  party  to  the  assessment. 
[See  the  subject  of  "Appeal  by  Lot  Owners"  for  irregulari- 
ties in  the  assessment,  pages  94-97,  in  the  notes  to  section  8 
of  the  act.] 

On  page  123  x>//>/v7,  the  language  of  Mr;  Justice  Harrison 
in  the  case  of  Shipman  v.  Forbes,  97  Cal.  572,  is  quoted 
for  the  purpose  of  showing  what  requirements  are 
deemed  to  be  jurisdictions].  As  the  decision  in  that  case 
might  seem  to  conflict  with  the  statement  made  above,  to 
the  effect  that  even  some  jurisdictional  requirements,  i.  e., 
requirements  having  the  semblance  of  benefit  to  the 
owner,  may  be  waived  by  the  property  owner's  failure  to 
appeal,  if  it  was  possible  for  the  omission,  error  or  irregu- 
larity complained  of  to  be  remedied  cr  corrected  by 
the  council  on  appeal,  when  the  time  for  appeal 
arrived,  so  as  to  restore  or  preserve  to  the  property 
owner  every  requirement  of  the  statute  having  the  semb- 
lance of  benefit  to  him, — it  is  deemed  proper,  in  this  con- 
nection, to  give  a  little  further  consideration  to  this  case 
of  Shipman  r.  Forbes.  In  that  case  the  work  had  been 
done  under  a  contract  made  pursuant  to  the  provisions  of 
the  San  Francisco  street  improvement  act  of  1872.  [Stat- 
utes 1872,  p.  804.]  A  warrant  had  been  issued  by 
the  superintendent  of  streets  after  the  assessment 
roll  had  been  made  up.  This  warrant  was  not  dated.  It 
was  lield  that  if  the  warrant  be  not  dated  so  as  to  show  the 
day  of  the  month  and  the  year,  it  cannot  serve  as  the  foun- 
dation of  proceedings  for  the  collection  of  the  assessment. 
Mr.  Justice  Harrison,  rendering  the  opinion  for  the  court, 
held  that  the  omission  of  such  date  from  the  warrant  was 
a  jurisdictional  defect.  Still,  if  the  deductions  from  the 
opinions  given  in  the  decisions  cited  supra,  upon  the 
various  street  improvement  acts,  be  correct,  even  the  omis- 
sion of  a  jurisdictional  requirement  is  not  fatal,  if  the 
property  owner  was  a  party  to  the  assessment  and  the  mis- 
chief might  have  been  remedied  by  the  council  on  appeal. 
And,  while  a  failure  to  date  the  warrant  may  be  a  jurisdic- 
tional defect,  as  held  by  Mr.  Justice  Harrison,  still  the  ^ase 
of  Shipman  v.  Forbes  does  not  seem  to  be  determinative 
of  the  question  as  to  whether,  under  the  present  street 
improvement  act, — the  Vrooman  act  of  March  18,  1885, — 
an  appeal  to  the  council  is  the  property  owner's  exclusive 
remedy  for  any  jurisdictional  defect  in  the  warrant. 
Because,  (1.)  the  decision  in  that  case  was  under  a  different 
act, — the  San  Francisco  street  improvement  act  of  April  1, 


126    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

1872;  and  (#.)  the  question  as  to  whether  or  not  an 
appeal  to  the  council  was  the  exclusive  remedy  does  not 
seem  to  have  been  raised  in  Shipman  v.  Forbes,  or,  if  it 
was,  it  was  not  considered  by  the  court  in  its  opinion. 

The  present  street  work  .net,  in  section  11,  expressly 
authorizes  the  council,  on  appeal,  to  ''instruct  and  direct 
the  superintendent  of  streets  to  correct  the  warrant,  *  * 
in  any  particular,  or  to  make  and  issue  a  new  warrant." 
The  act  of  April  1,  1872,  under  which  Shipman  v.  Forbes 
was  decided,  did  not  contain  such  express  provisions  in 
relation  to  the  correction  of  the  warrant  or  the  issuance  of 
a  new  one,  although  it  did  authorize  the  council  on  appeal 
to  "make  any  order  or  decision  *  *  *  in  relation  to 
any  of  the  acts  of  *  *  *  the  said  superintendent  of 
public  streets,"  etc.  [Sec.  12  of  act  of  April  1,  1872,  statutes 
1872,  p.  815.]  This  clause  of  the  act  of  1872  seems  to  be 
broad  enough  to  include  any  correction  in  the  warrant. 
However,  under  the  said  act  of  1872,  the  appeal  had  to  be 
taken  "within  fifteen  days  after  the  issuance  of  said  assess- 
ment." It  is  possible  that  under  that  act  the  warrant  need 
not  have  been  issued  until  more  than  fifteen  days  after  the 
issuance  of  the  assessment,  and,  if  the  act  be  capable  of  such 
a  construction,  then  the  provisions  for  an  appeal  would  not 
seem  to  contemplate  jurisdictional  defects  in  the  warrant, 
since  such  defects  might  occur  after  the  time  to  appeal  had 
expired;  and  if  such  construction  of  the  act  be  correct,  the 
decision  in  Shipman  v.  Forbes  must  have  remained 
unchanged  even  if  the  question  had  been  raised  as  to 
whether  or  not  an  appeal  to  the  board  of  supervisors  was 
the  property  owner's  exclusive  remedy  for  a  failure  to  date 
the  warrant. 

But,  under  the  present  street  improvement  act, — the 
Vrooman  act  of  March  18,  1885, — the  appeal  need  not  be 
taken  until  "within  thirty  days  after  the  date  of  the  war- 
rant," and  on  such  appeal  the  council  "may  instruct  and 
direct  the  superintendent  of  streets  to  correct  the  warrant, 
*  *  *  in  any  particular,  or  to  make  and  issue  a  new 
warrant."  And  therefore  it  is  possible  that,  as  to  some  defects 
in  the  warrant,an  appeal  to  the  council  is  the  property  owners' 
exclusive  remedy,  even  though  the  defect  be  of  a  jurisdic- 
tional character,  i.  e.,  even  though  the  defect  complained  of 
consists  in  the  omission  of  some  requirement  of  the 
statute  having  the  semblance  of  benefit  to  the  property 
owner.  But  it  is  probable  that  an  appeal  is  the  exclusive 
remedy  only  as  to  "some"  jurisdictional  defects  of  the  warrant, 
because  there  is  one  jurisdictional  defect,  at  least,  which 
even  under  the  present  street  improvement  act, 


RULES  OF  APPEAL  UNDER  PRIOR  ACTS   M^lt'wS   127 

would  not  be  waived  by  a  failure  to  appeal,  and  that  is 
the  very  defect  which  existed  in  Shipman  v.  Forbes,  viz., 
an  omission  to  date  the  warrant.  Because,  under  the  pres- 
ent street  improvement  act,  the  right  of  appeal  does  not 
spring  into  existence  until  the  warrant  is  dated.  The 
appeal  ni:iy  be  taken  at  any  time  "within  thirty  days  after 
the  date  of  the- warrant,"  and,  therefore,  until  the  warrant 
is  dated  no  appeal  need  be  taken.  The  expression  "date  of 
an  instrument,"  as  commonly  used,  does  not  mean  the  time 
when  the  instrument  was  actually  executed,  but  the  time  of 
its  execution  as  given  or  stated  in  the  instrument  itself, 
[lament  v.  Trenton  L.  &  M.  Co.,  32  N.  J.,  L.  515.] 

The  conclusion  deducible  from  the  above  is,  therefore, 
that  as  to  some  defects  in  the  warrant  an  appeal  is  the 
exclusive  remedy,  even  though  they  be  jurisdictiorial,  i.  e., 
consist  in  the  omission  of  some  requirement  of  the  statute 
having  the  semblance  of  benefit  to  the  property  owner, 
provided  the  property  owner  was  a  party  to  the 
assessment,  and  the  error  or  irregularity  com- 
plained of  is  capable  of  correction  upon  appeal  so  as 
to  restore  or  preserve  to  the  propert}'  owner  all  benefits 
secured  to  him  by  the  statute.  But  these  remediable 
defects  do  not  include  a  failure  to  date  the  warrant,  as  the 
right  to  appeal  does  not  spring  into  being  until  the  warrant 
is  dated,  and  Shipman  r.  Forbes  does  not,  in  any  respect, 
militate  against  those  cases  cited  supra,  which  hold  that 
an  appeal  is  the  exclusive  remedy  where  the  error  or  irreg- 
ularity complained  of  is  capable  of  correction  on  appeal, 
and  it  will  be  seen  infra,  under  the  caption:  "Cases  in  which 
it  has  been  held  that  an  appeal  is  the  only  remedy,"  that 
the  Supreme  Court  in  the  later  case  of  Dowling  v.  Altschul, 
33  Pac.  Rep.  495,  has  fully  sustained  the  proposition  that 
an  appeal  is  the  exclusive  remedy  in  all  such  cases.  [See 
supra,  pages  94-97,  "Appeal  by  lot  owners  for  errors  in  the 
assessment."] 

The  term  "jurisdictional  requirements,"  as  used  in  the 
statement  of  the  foregoing  conclusions,  is  used  synony- 
mously with  the  expression  "requirements  of  the  statute 
having  the  semblance  of  benefit  to  the  owner."  As  thus  used 
there  can  be  no  doubt  that  there  are  some  jurisdictional 
requirements,  the  omission  of  which  is  waived,  if  an  appeal 
to  the  council  be  not  taken  by  the  property  owner.  In  other 
words,  an  appeal  to  the  council  is  the  exclusive  remedy  for 
some  of  said  defects,  and  the  test  in  each  case  seems  to  be: 
Was  the  property  owner  a  party  to  the  assessment?  and,  if 
he  was,  was  the  omission  or  irregularity  complained  of  cap- 
able of  correction  by  the  council  on  appeal  so  as  to  preserve 


128    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

or  restore  to  the  property  owner  all  the  rights  and  benefits 
secured  to  him  by  the  statute?  As  to  those  jurisdictional 
defects  which  occur  prior  to  the  award  of  the  contract, 
an  appeal  does  not  seem  to  afford  any  remedy;  the  prop- 
erty owner  is,  therefore,  not  a  party  "aggrieved,"  and  may 
avail  himself  of  such  defects  to  defeat  an  action  upon  the 
assessment.  Nor  would  a  " petition  of  remonstrance"  afford 
a  remedy  in  such  case.  The  provision  authoriizng  "a  peti- 
tion of  remonstrance"  against  the  acts  and  proceedings  of 
the  city  council  was  intended  to  be  applicable  only  to  acts 
and  proceedings  within  the  power  of  the  council.  [Capron  v. 
Hitchcock  33  Pac.  Rep.  43L.J  As  to  what  constitutes  a 
property  owner  a  stranger  to  the  assessment  roll,  so  as  to 
exempt  him  from  the  provisions  relative  to  "appeal,"  see 
supra  pp.  94-97. 

The  decisions  cited  above  were  cited  for  the  purpose  of 
exemplifying  the  principles  which  were  held  to  govern  the 
right  of  appeal,  and  the  extent  of  the  remedy  thereby 
afforded,  under  street  improvement  acts  passed  prior  to  the 
passage  of  the  present  street  improvement  act, — the  Vroo- 
man  act  of  March  18,  1885.  Those  statutes  were,  in  most 
respects,  similar  to  the  present  street  improvement  act, 
except  that  the  last  clause  of  the  present  act  adds  a  pro- 
vision to  the  effect  that  if  notice  of  intention  has  been 
duly  published, — "no  assessment  shall  be  held  invalid, 
exceot  upon  appeal,"  etc.  However,  the  recent  decisions 
under  the  present  act  do  not  seem  to  have  altered  the  prin- 
ciples declared  in  the  decisions  under  the  former  street 
improvement  acts,  and  these  principles  remain  the  same 
now  as  under  the  former  acts.  [See  supra  pp.  16-17.] 

IV.  Principles  Governing  Appeal  under  Present  Street 
Improvement  Act. 

In  Manning  v.  Den,  90  Cal.  610,  the  contract  was  void, 
because  entered  into  by  the  superintendent  prematurely. 
The  proceedings  were  had,  and  the  work  done,  under  the 
present  street  work  act — act  of  March  18,  1885.  It  was  held 
that  a  failure  to  appeal  did  not  cure  the  defect,  nor  would 
the  owner  be  estopped  if  he  had  taken  an  appeal,  and  the 
appeal  had  been  decided  by  the  council  against  him.  The 
court,  per  Harrison  J.,  pages  615-616,  said:  "Any  objections 
to  the  correctness  of  the  proceedings  by  reason  of  the  fore- 
going defects  were  not  waived  by  the  defendant  by  his 
failure  to  appeal  to  the  city  council.  Section  11  of  the  statute 
in  question  provides  for  an  appeal  to  the  city  council  by 
those  who  feel  aggrieved  or  have  any  objection  to  any  act, 
determination,  or  proceeding  of  the  superintendent  of 
streets,  and  after  authorizing  the  city  council  to  remedy  and 


RULES  OF  APPEAL  UNDER  PRESENT  ACT    f'        129 


correct  any  error  or  informality  in  the  proceedings,  declares 
that  the  decisions  and  determinations  of  said  city  council 
upon  such  appeal  shall  be  final  and  conclusive,  'as  to  all 
errors,  informalities  and  irregularities  which  said  city  coun- 
cil might  have  remedied  and  avoided.'  It  is  evident,  how- 
ever, that  the  foregoing  defects  in  the  proceedings  could  not 
have  been  remedied  or  avoided  by  the  city  council  upon 
any  appeal  from  the  assessment.  At  that  time  the  work  had 
been  done,  and  there  was  no  occasion  for  any  contract  to  be 
entered  into,  and  any  direction  from  the  city  council  to  the 
superintendence!  streets  to  enter  into  a  contract  would  have 
been  nugatory  as  to  anything  that  had  taken  place  prior 
thereto.  A  contract  entered  into  by  the  superintendent  at 
that  date  would  not  validate  an  assessment  for  work  that  had 
been  done  prior  thereto.  Unless  the  superintendent  had 
entered  into  a  contract  in  pursuance  of  the  award  at  a  time 
when  by  the  provisions  of  the  statute,  he  was  authorized  to 
do  so,  there  was  no  foundation  for  any  of  the  subsequent 
proceedings,  and  the  person  who  did  the  work  acquired  no 
rights  thereby  against  the  owner.  '  A  contract  authorized 
and  executed  in  the  mode  prescribed  by  the  act  is  indispens- 
able to  the  validity  of  the  assessment.  This  defect  is  not 
cured  by  the  failure  of  the  lot  holders  to  appeal  to  the  board, 
because,  had  an  appeal  been  taken,  the  defect  could  not 
have  been  remedied  by  the  board.'  [Dougherty  v.  Hitch- 
cock, 35  Cal.  524.]  'The  premature  action  of  the  superin- 
tendent was  one  which  affected  his  power  or  jurisdiction. 
His  action  was  ro/W,  and  that  which  was  void  does  not 
become  valid  by  reason  of  a  failure  to  appeal.  The  prop- 
erty owners  were  not  aggrieved,  and  the  failure  of  the  con- 
tractor to  appeal  did  not  operate,  (1.)  To  create  a 
yriccance  0:1  the  part  of  defendants,  and  (2.)  to  estop 
them  from  complaining  of  it.'  [Burke  v.  Turney,  54 
Cal.  487.]  The  provision,  in  the  latter  part  of  section 
11,  that  'no  assessment  shall  be  held  invalid  except 
upon  appeal  to  the  city  council,'  etc.,  has  no  application  to  a 
case  in  which  an  appeal  is  not  authorized,  or  in  which,  even 
if  taken,  the  city  council  could  not  have  remedied  the  defect. 
The  legislature  did  not  intend  to  declare  that  the  owner 
should  be  deprived  of  his  defense  to  any  claim  upon  an 
assessment,  where  the  assessment  was  void  by  reason  of 
incurable  defects,  because  he  had  failed  to  invoke  the  aid  of 
a  tribunal  which  was  powerless  to  grant  him  any  relief. 
Nor  would  the  owner  be  estopped  from  presenting  any  such 
defects  because  he  had  appealed  to  the  city  council,  and 
that  body  had  denied  him  relief.  Their  denial  of  relief 
may  have  been  based  upon  the  express  ground  that  the 


130          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

matter  appealed  from  was  not  such  as  they  could  remedy, 
and  therefore  they  would  decline  to  take  any  action.'7  [See 
also  Dowling  v.  Altschul,  33  Pac.  Rep.  495;  Ferine  v.  For- 
bush,  97  Cal.  305;  also  McBeaii  v.  Redick,  9G  Gal.  191; 
Frick  v.  Morford,  87  Cal.  576.] 

As  stated  supra,  the  provisions  of  section  3  relative  to  a 
"petition  of  remonstrance"  are  applicable  only  to  the  acts 
and  decisions  of  the  council,  while  the  provisions  of  section 
11  relative  to  "appeal"  seem  to  contemplate  only  the  acts 
and  decisions  of  the  superintendent  of  streets,  and  we  have 
seen  from  the  above  that  an  appeal  is  not  the  exclusive 
remedy  where  the  assessment  is  void  and  incurable  by  rea- 
son of  some  act  of  the  superintendent  of  streets  in  excess  of 
his  powers.  The  same  principle  seems  to  be  applicable  to 
the  provisions  relative  to  the  petition  of  remonstrance.  In 
C apron  v.  Hitchcock, 33  Pac.  Rep.  431,  the  court,  per  Vanclief , 
commissioner,  said:  "The  provision  authorizing  fa  petition 
of  remonstrance'  against  the  acts  and  proceedings  of  the 
cit}'  council  was  intended  to  be  applicable  only  to  acts  and 
proceedings  within  the  power  of  the  council." 

V.  Cases  in  which  it  has  been  Held  that  an  Appeal  is  the 
only  Remedy. 

1.  If  a  property  owner   feels  aggrieved  by  the  action  of 
the  superintendent  of    streets    in    extending   the    time    for 
completion    of    the   work,  his    only  remedy    is    by    appeal. 
[Conlin  v.  Seaman,  22  Cal.  546.] 

2.  If    a   property  owner  is  dissatisfied  with  the  decision 
of    the  superintendent  that  the  contract  has  been  properly 
fulfilled,  his  only  remedy  is  by  appeal.    [Emery  v.  Bradford, 
29  Cal.  75;  Cochran  v.  Collins,  29  Cal.  130;  Shepard  v.  Me- 
Neil,  38  Cal.  72;  Jennings  v.  Le  Breton,  80  Cal.  8;  Fanning 
v.  Leviston,  93  Cal.  186.] 

3.  If   the  assessment   is    made  to    one  of    several  joint 
owners  instead  of  to  all,  the  only  remedy  of  the  single  joint 
owner  to  whom  it  is  made  is  by  appeal.     [Taylor  v.  Palmer, 
31  Cal.  242.]     ID  this  case,  page  257,  Mr.  Justice  Sanderson 
said:     "If,  for  the  reason  suggested,  the  assessment  was  not 
properly  made,  the  appellant's  remedy  was  by  appeal  to  the 
board  of   supervisors,  as  provided  in   the  twelfth  section  of 
the  act.     [Act  of  1862.]     He  is   named  in  the  assessment, 
and  was  therefore  put  upon  his  appeal,  if  he  had  any  fault 
to  find.   If  he  owned  in  common  with  others,  or  if  he  owned 
only  a  part  of  the  premises,  he  could  have  appealed  to  the 
board  of   supervisors,  and  had  the  assessment  corrected  to 
suit  the  facts.     Not  having  done  so,  he  cannot  now  question 
the  validity  of  .the  assessment  upon  the  ground  suggested.'7 

4-     The    fact   that     the    mayor   of    Oakland,   before  his 


CASKS    IX    WHICH    APPEAL    ONLY    REMEDY       M^'iffi  131 


election,  had  become  the  assignee  of  a  contract,  as  security 
for  a  debt  due  him  by  the  contractor,  does  not  affect  the 
validity  of  the  assessment  under  the  Oakland  street  law  of 
April  4,  1864;  and  if  a  property  owner  is  dissatisfied  with 
the  act  of  the  mayor  in  countersigning  the  warrant  under 
these  circumstances,  his  only  remedy  is  by  appeal.  [Bau- 
dry  v.  Valdez,  32  Cal.  270.] 

£.  If  there  be  a  fraudulent  side  agreement  between 
(he  contractor  and  some  of  the  lot  owners,  whereby  the 
contractor,  for  the  purpose  of  inducing  some  of  the  lot 
owners  to  sign  a  petition  for  the  work,  agrees  with  them  to 
do  the  work  at  a  specified  rate  in  lieu  of  and  less  than  the 
rate  to  be  awarded  in  the  contract,  —  while  this  side  agree- 
ment is  a  fraud  upon  the  other  owners,  and  impregnates 
the  assessment  with  the  fraud,  —  nevertheless  an  appeal  to 
the  council  is  the  only  remedy  of  the  defrauded  property 
owners,  unless  the  statute  expressly  allows  the  fraud  to  be 
set  up  in  defense  of  an  action  brought  upon  the  assessment. 
Thus  in  Xolan  r.  Reese,  32  Cal.  486,  the  work  was  done  and 
the  proceedings  had,  under  the  San  Francisco  street  work 
act  of  1862.  In  that  case  it  was  held  that  "if  the  person 
who  contracts  with  the  street  superintendent  to  improve  a 
street,  before  the  contract  is  made  makes  a  private  contract 
with  a  part  of  the  owners  of  the  lots  liable  to  be  assessed 
for  the  improvement,  to  do  their  work  for  less  than  the  price 
allowed  by  the  contract,  this  private  contract  is  in  fraud  of 
the  law  under  which  the  streets  are  improved;  but  the  fraud 
is  no  defense  in  an  action  by  the  contractor  to  recover 
the  assessment,  and  must  be  taken  advantage  of  by  a 
remonstrance  to  or  appeal  to  the  board  of  supervisors." 
[Statutes  of  1862,  page  391,  §§  6,  12.]  Mr.  Justice  Shafter, 
delivering  the  opinion  of  the  court,  says,  page  487: 
"Should  the  fraud  with  which  the  contractor  was  charged 
be  considered  as  affecting  the  'award  of  the  work'  to  him  by 
the  board  of  supervisors  [section  6  of  act  of  1862;  section 
5~  of  the  act  of  March  18,  1885],  then  under  the  fourth 
section  of  the  act  [section  3  of  the  act  of  March  18,  1885], 
it  should  have  been  brought  to  the  notice  of  the  board  of 
supervisors  by  a  remonstrance  coming  from  one  or  more  of 
the  lot  owners.  If,  on  the  other  hand,  the  fraud  is  con- 
sidered as  affecting  the  'legality  of  the  assessment/  then 
any  person  having  objections  to  make  should  have  appealed 
to  the  board  of  supervisors  within  thirty-five  days  subse- 
quent to  the  date  of  the  assessment.  [Section  12  of  the 
act  of  1862;  section  11  of  the  act  of  1885.]  Such  are  the 
methods  pointed  out  by  the  act  for  reviewing  the  decisions 
of  the  board  and  the  acts  of  the  superintendent,  and  they 


132    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

exclude  all  others  by  positive  provision.  The  reason  for 
this  narrowness  in  the  remedies  provided  for  by  the  act  is 
found  in  the  fact  that  the  legislature,  in  framing  it,  was 
providing  for  a  matter  of  public  concern  through  an  exer- 
cise of  the  sovereign  power  of  taxation.  The  meagerness 
averted  to  has  its  origin  in  the  necessities  of  the  power.'7 
To  the  same  effect  is  the  decision  in  Himmelmann  v. 
Hoadley,  44  Cal.  214,  227,  decided  under  the  same  statute. 
In  Brady  v.  Bartlett,  56  Cal.  350,  however,  it  was  held  that 
where  there  had  been  such  a  fraudulent  side  contract,  the 
fraud  could  be  set  up  in  defense  to  an  action  upon  the 
assessment,  and  that  if  proven  it  would  defeat  all  recovery 
by  the  contractor.  But  this  was  because  the  act  under 
which  the  work  was  done  expressly  allowed  such  a  defense. 
In  this  case  the  work  was  done  and  the  proceedings  had 
under  the  San  Francisco  street  work  act  of  1872,  by  the 
the  13th  section  of  which  such  defense  was  expressly 
allowed.  That  section  provided  that  "in  suits  brought  to 
recover  street  assessments  *  *  *  no  defense  shall  be 
interposed  except  *  *  *  .  Third.  Fraud  in  the  assess- 
ment, or  in  any  of  the  acts  or  proceedings  prior  thereto." 
Unless  there  be  some  equivalent  provision  in  the  present 
street  work  act  it  is  altogether  probable  that  in  any  future 
case  arising  out  of  proceedings  had  under  the  present  act, 
the  Supreme  Court  will  follow  the  rule  laid  down  in  Nolan 
v.  Reese,  and  Himmelmann  v.  Hoadley,  and  hold 
that  where  there  is  such  a  fraudulent  side  agree- 
ment the  property  owner's  only  remedy  is  by  appeal  to  the 
council, — there  to  make  a  direct  attack  upon  the  proceed- 
ings. If  there  is  any  provision  in  the  present  street  work 
act  similar  to  or  the  equivalent  of  the  provision  of  the  13th 
section  of  the  act  of  1872,  relied  upon  in  Brady  v. 
Bartlett,  supra,  it  has  escaped  the  author's  notice. 

In  Chambers  v.  Satterlee,  40  Cal.  520,  it  is  said:  "While 
the  statute  intended  to  leave  open  for  judicial  inquiry  all 
questions  which  can  be  said  to  be  of  a  jurisdictional  character, 
its  purpose  was  to  submit  all  other  questions  to  the  decision 
of  the  board  itself."  [See  also  Emery  v.  Bradford,  29  Cal. 
page  86,  cited  supra  p.  119.]  Therefore,  if  the  line  which  di- 
vides those  matters,  over  which  the  decision  of  the  council  on 
appeal  is  final  and  conclusive,  from  those  matters  over 
which  its  decision  is  not  thus  final  and  conclusive, — mat- 
ters as  to  which  the  provisions  for  appeal  are  not  referable 
— be  that  line  which' likewise  divides  matters  of  a  jurisdic- 
tional character  from  matters  of  a  non-jurisdictional  char- 
acter,— and  this  seems  to  be  the  rule  Reducible  from  the 
authorities,  provided  the  defect  be  both  jurisdictional,  and 


(UNIVERSITY. 

^S^CAL  ^ 

MEANING    OF  "JURISDICTIONAL  REQUIREMENTS"  ^  133 


past  remedy  or  appeal,  —  it  follows  that  in  answer  to  the 
question  in  any  case,  Is  an  appeal  the  sole  remedy  of  the 
property  owner?  —  we  must  first  answer  the  question,  Is  the 
matter  complained  of  jurisdictional  in  character  or  non- 
jurisdictional?  If  jurisdictional  it  may  be  availed  of 
in  defense  to  an  action  upon  the  assessment,  and 
is  not  waived  even  if  the  property  owner  has  prose- 
cuted an  unsuccessful  appeal  to  the  council,  pro- 
vided the  error  or  irregularity  complained  of  was  past 
remedy  at  the  time  the  appeal  was  taken.  That  is  to  say, 
even  if  the  alleged  irregularity  or  error  be  jurisdictional  in 
character,  in  the  sense  that  it  is  an  essential  requirement, 
or  requirement  having  the  semblance  of  benefit  to  the 
owner,  still  under  the  provisions  of  section  11  of  the  act, 
an  appeal  to  the  council  is  the  sole  and  exclusive  rem- 
edy of  the  property  owner,  if  the  alleged  error  or  irregu- 
larity might  have  been  avoided  or  remedied  by  the  council 
on  appeal.  The  remedy  by  appeal  is  exclusive  of  any 
other  remedy  as  to  all  matters  which  can  be  revised  and 
corrected  on  such  appeal.  For  example,  if  the  error  or 
irregularity  complained  of  be  one  inhering  in  and  directly 
appertaining  to  the  assessment  only  —  all  the  proceedings 
up  to  the  assessment  having  been  regular  and  proper  — 
then,  if  the  error  be  capable  of  correction  on  appeal,  such 
appeal  is  the  only  remedy  of  the  "aggrieved"  property 
owner.  [Bowling  'v.  Altschul,  33  Pac.  Rep.  495.]  If  the 
alleged  error  or  irregularity  is  non-jurisdictional,  an  appeal 
to  the  council  is  the  only  remedy.  But  those  matters  are 
of  a  jurisdictional  character  which  are  essential  to  the 
validity  of  the  assessment.  So  that,  ultimately,  the  import- 
ant question  in  determining  whether  the  matter  complained 
of  is  jurisdictional  or  not,  is,  Is  the  matter  essential  to  the 
Validity  of  the  assessment  or  to  the  right  to  recover  in  an 
action  upon  the  assessment?  If  it  is,  then  an  appeal  is  not 
the  exclusive  remedy,  if  the  error  is  incapable  of  cor- 
rection upon  appeal.  As  to  the  rules  by  which  to 
determine  what  requirements  of  a  statute  are  essential  and 
what  are  non-essential,  see  the  opinion  of  Mr.  Justice 
Thornton,  and  authorities  cited,  in  the  above  case  of  Brady  v. 
Bartlett,  56  Cal.  pages  357,  358.  But,  as  is  well  said  by  the 
learned  judge,  in  that  case,  the  rule  by  which  to  determine 
what  provisions  in  a  statute  are  mandatory  and  what  not, 
—  and,  therefore,  what  is  essential  and  what  non-essential,  — 
is  plain  and  simple;  but  to  apply  them,  "hoc  opus  est." 

Throughout  the  notes  to  this  section  of  the  act  [Sec.  11] 
the  expression  "jurisdictional  requirements,"  has  been  used 
synonymously  with  the  expression,  "requirements  of  the 


134    STREET  WORK  LAW STREET  -IMPROVEMENT  ACT 

statute  having  the  semblance  of  benefit  to  the  property 
owner."  As  thus  used  it  has  been  stated  that,  notwith- 
standing some  one  of  such  requirements  may  be  omitted, 
the  omission  is  nevertheless  not  necessarily  fatal  in  an 
action  upon  the  assessment,  unless  the  omission  was  inca- 
pable of  correction  on  an  appeal  to  the  council,  so  as  to  pre- 
serve or  restore  to  the  property  owner  the  right  or  benefit 
thus  omitted.  But,  the  term  "jurisdictional  requirements" 
might  have  been  used  in  a  more  limited  and  restricted 
sense.  It  might  have  been  restricted  to  those  requirements 
which  not  only  have  the  semblance  of  benefit  to  the  owner, 
but  which  are  to  be  performed  at  such  a  stage  of  the  pro- 
ceedings that  if  any  of  them  be  omitted  or  irregularly  per- 
formed, the  omission  or  irregularity  is  incapable  of  correc- 
tion on  appeal  —  the  mischief  is  past  remedy  when 
the  time  to  appeal  has  arrived,  e.  g.,  all  such 
requirements  of  the  statute  as  are  necessary  to  give  the 
council  jurisdiction  to  order  the  work  to  be  done.  As  thus 
used  every  jurisdictional  requirement  is  essential  to  the 
validity  of  the  assessment  and  to  a  recovery  thereon,  since 
if  any  such  requirement  be  omitted,  the  mischief  is  past 
remedy  by  the  council  on  appeal, — when  the  time  for  appeal 
has  arrived,  no  correction  can  possibly  be  made  so  as  to 
restore  to  the  property  owner  the  benefit  secured  to  him 
by  the  statute.  It  is  therefore  important  that  the  reader 
should  bear  in  mind  the  meaning  which  has  been  placed 
upon  the  word  "  jurisdictional,"  as  used  throughout  the 
notes  to  this  section,  and  remember  that  it  is  used  in  the 
broader  of  the  two  possible  significations  given  above, 
namely,  synonomously  with  the  expression  "every  require- 
ment of  the  statute  having  the  semblance  of  benefit  to  the 
owner." 

When  Mr.  Justice  Wallace,  in  Chambers  v.  Satterlee,  40 
Gal.  520,  said  that,  "While  the  statute  intended  to  leave 
open  for  judicial  inquiry  all  questions  which  can  be  said 
to  be  of  a  jurisdictional  character,  its  purpose  was  to  sub- 
mit all  other  questions  to  the  decision  of  the  board  itself," 
he  undoubtedly  used  the  term  "jurisdictional"  in  the  more 
restricted  of  the  two  significations  given  above.  That  is, 
he  used  the  term  "jurisdictional"  to  designate  those  require- 
ments which  not  only  have  the  semblance  of  benefit  to  the 
property  owners,  but  which  are  provided  for  at  such  a 
stage  of  the  proceedings  that,  if  omitted,  it  is,  in  the 
nature  of  things,  too  late  to  remedy  the  evil  when  the  time 
for  an  appeal  to  the  council  has  arrived;  and  this  is  doubt- 
less a  more  accurate  use  of  the  expression;  although  the  term 
"jurisdictional"  does  not  seem  to  be  appropriate  in  this  con- 


MEANING   OF      JURISDICTION  'ifStf        135 


nection  at  all,  since  it  is  used-  not  to  express  the  power  of  a 
judicial  body  to  hear  and  determine,  but  rather  the  power 
of  certain  officials  to  do  certain  acts,  most  of  which  are  of 
a  ministerial  character;  and,  since  the  term  seems  to  be 
wholly  inappropriate  in  this  connection,  it  really  matters 
little  in  what  sense  it  is  here  used,  provided  the  mean- 
ing to  be  attached  to  it  in  this  connection  be  accurately 
defined  pro  hac  vice. 

It  is  to  be  regretted  that  the  word  "jurisdictional"  should 
ever  have  been  used  at  all  in  this  connection,  as  some  other 
and  more  appropriate  word  would  have  avoided  much  con- 
fusion of  thought  and  expression.  It  is  not  an  appro- 
priate word  to  use  in  this  connection,  for,  as  stated  by  Mr. 
Justice  Temple,  in  Chambers  v.  Satterlee,  40  Cal.  525, 
"The  word  'jurisdiction'  [as  here  used]  means  power, 
for  there  is  nothing  of  a  judicial  nature  in  that  portion  of 
the  proceedings  which  relates  to  ordering  the  work  and  let- 
ting the  contract."  The  word  is  more  appropriately  u?ed 
in  connection  with  judicial  proceedings,  in  which  connec- 
tion it  has  recently  been  defined  to  mean  the  power  to  hear 
and  determine  a  cause,  and  to  render  the  particular  judg- 
ment or  order  entered  in  the  particular  case.  But  there  is 
perhaps  no  word  in  the  English  language  that  has  been 
more  frequently  defined  than  this  word  ''jurisdiction,"  and 
the  decisions  are  still  far  from  being  in  accord  with  each 
other.  [See  Am.  and  Eng.  Encyclopa3dia  of  Law,  Vol.  12, 
l>.  - 14,  et  seq.}  The  term  may  be  appropriately  used  in 
connection  with  the  power  of  the  council  to  hear  and  deter- 
mine the  questions  presented  to  it  on  an  appeal  by  a 
property  owner,  or  on  a  petition  of  remonstrance.  In  such 
a  case  the  council  exercises  judicial  functions.  But  it  is 
not  correctly  used  when  employed  to  express  the  power  or 
authority  of  the  superintendent  of  streets,  for  example, 
to  make  any  particular  assessment,  or  to  issue  any  particu- 
lar warrant. 

However,  following  what  seems  to  be  a  general  custom, 
the  expression  "jurisdictional  requirements"  has  been  used 
in  the  notes  to  this  section  as  including  "every  require- 
ment having  the  semblance  of  benefit  to  the  property 
owner," — including  those  things  which  the  statute  requires 
to  be  done  by  the  superintendent  of  streets  after  the  execu- 
tion of  the  contract  and  after  the  performance  of  the  work 
as  well  as  those  requirements  necessary  to  give  the  council 
jurisdiction  to  order  the  work  done.  Although  it  would 
doubtless  have  been  more  accurate  if  the  expression  had 
been  used  to  express  merely  those  requirements  of  the  stat- 
ute which  are  absolutely  essential  to  any  recovery  upon 


136    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

the  assessment — those  requirements  which  not  only  affect 
substantial  rights,  but  which  are  incapable  of  being  rem- 
edied by  the  council  on  appeal. 

6.  If  the  street  superintendent  includes  in  the  assess- 
ment any  sum  which  he  ought  not  to  have  included,  an 
appeal  to  the  council  is  the  only  remedy,  if  there  be  any 
part  of  the  assessment  which  is  legal  and  Droper,  and  if  the 
lots  charged  with  the  assessment  are  lawfully  chargeable 
with  some  part  of  the  total  amount  assessed  to  pay  the  cost 
of  the  work,  provided  the  part  which  is  lawfully  assessable 
against  the  property,  is  severable  from  the  part  which  is 
not  lawfully  assessable.  Thus  in  Himmelmann  v.  Hoadley, 
44  Cal.  276,  the  contract  was  awarded  for  macadamizing  and 
curbing  California  street  from  Gough  street  west  to  Cemetery 
avenue  in  San  Francisco.  Subsequent  to  the  award,  the  line 
of  Cemetery  avenue  was  extended  to  the  west  so  that  the  dis- 
tance from  Gough  street  to  Cemetery  avenue  was  increased 
about  200  feet.  The  contractor  macadamized  and  curbed  this 
additional  200  feet,  and  the  superintendent  included  the  cost 
of  the  additional  work  in  the  assessment.  The  lots  sought  to 
be  charged  with  the  lien,  lie  to  the  east  of-  the  former  line  of 
Cemetery  avenue,  i.  e.,  they  lie  within  the  limits  of  Cali- 
fornia street  included  in  the  award  of  the  contract  made  by 
the  board,  and  were  properly  chargeable  with  the  cost  of  the 
work  if  no  additional  work  had  been  done.  The  court,  per 
Rhodes,  J.,  said:  "It  is  very  clear  that  the  superintendent 
had  no  authority  to  make  an  assessment  for  the  wrork  on  the 
additional  two  hundred  feet  of  the  street.  *  *  *  The 
plaintiff  maintains,  that  as  the  superintendent  had  jurisdic- 
tion to  make  an  assessment  for  the  expense  of  the  work  per- 
formed on  the  street,  up  to  the  former  line  of  Cemetery 
avenue,  if  he  included  in  the  assessment  any  sum  which, 
for  any  reason,  ought  not  to  have  been  included,  then  the 
property  holder  should  have  appealed  to  the  board  of  super- 
visors. This  position  is  sustained  by  Emery  v.  Bradford, 
29  Cal.  88;  Smith  v.  Davis,  30  Cal.  536;  Nolan  v.  Reese,  32 
Cal.  484;  Smith  v.  Cofran,  34  Cal.  314,  and  many  other 
cases  in  this  court.  The  question  would  be  different  had 
the  action  been  brought  to  enforce  a  lien  upon  property  front- 
ing on  the  street  lying  west  of  the  former  line  of  Cemetery 
avenue,  [i.e.,  the  property  not  on  that  part  of  California  street, 
lying  within  the  lines  of  intersection  described  in  the  award 
of  the  contract,]  a  question  of  jurisdiction  would  have  been 
presented.  But  when  the  contract  is  valid,  if  the  superin- 
tendent includes  in  the  assessment  the  expense  of  work  not 
provided  for  in  the  contract,  or  not  performed  under  it,  it 


CASES    IX    WHICH    APPEAL    IS    ONLY     REMEDY       ??= ,11  Act  of 


March  18.  1885. 


is  an  error  on  his  part,  which   may  be  corrected  on  appeal 
to  the  board,  as  provided  for   in  the  statute." 

To  the  same  effect  are  the  following  cases  :  Bo}Tle  v. 
Hitchcock,  66  Gal.  129,  where  incidental  expenses  for 
engineering  and  printing  were  objected  to;  Frick  v. 
Morford,  87  Gal.  577;  McVerry  v.  Boyd,  89  Cal.  304J 
309;  Fanning  v.  Leviston,  93  Cal.  "  188;  Ferine  v. 
Forbash,  97  Cal.  305.  In  this  latter  case  the  superin- 
tendent included  in  the  assessment  the  cost  of  certain 
bulkheads,  though  they  were  not  provided  for  in  the  con- 
tract. In  this  case  it  was  said,  per  De Haven,  J.:  "It  is 
true  that,  as  the  contract  did  not  provide  for  constructing 
these  bulkheads,  the  superintendent  of  streets  ought  not 
to  have  included  their  cost  in  the  assessment  which  he  made, 
but  for  such  erroneous  action  on  his  part  the  only  remedy 
was  an  appeal  to  the  city  council,  as  provided  for  in  section 
11  of  the  act.  *  *  *  Such  an  objection  to  the  assess- 
ment could  have  been  made  to  the  city  council,  and  the 
defendant  waived  his  right  to  now  make  it  by  not  appealing 
to  that  body  for  its  correction.  When,  however,  an  assess- 
ment includes  the  cost  of  work  not  falling  within  the  general 
description  of  that  which  is  referred  to  in  the  resolution  of 
intention,  or  when  such  work  bears  no  relation  whatever  to 
that  which  is  described  in  the  contract,  this  rule  would  not 
apply.  But  this  is  not  such  a  case.  The  construction  of 
the  bulkheads  u-as  not,  so  far  as  appears  here,  an  entire 
departure  from  the  general  plan  or  scope  of  the  improve- 
ments described  in  the  resolution  of  intention,  although 
mention  of  them  is  omitted  in  the  plans  and  specifications 
attached  to  the  contract.  In  such  a  case  the  determination 
of  the  superintendent  of  streets  that  their  construction  was 
necessary  in  order  to  fully  complete  the  work  called  for  by 
the  contract,  was  only  an  error  of  judgment,  and  his  action 
in  making  an  assessment  to  cover  their  cost  was  only  a 
mere  error,  which  it  is  too  late  now  to  correct,  and  which 
does  not  render  the  assessment  wholly  void." 

7.  If    it    is  objected  that  the  contract  was  made  with  a 
corporation    acting    through    its    president,    who    was   not 
authorized  to  enter  into  the  contract,  the  objection  must  be 
raised  on  appeal  to  the  council.    [Oakland  Pvg.  Co.,  v.  Rier, 
52  Cal.  270.J 

8.  If    there    is    a  purely    technical  omission  in  the  dia- 
gram not  amounting  to  an  omission  in  respect  to  something 
made   essential  by  the  act,  or    affecting    substantial    rights, 
the  only  remedy  is  by  appeal.     [Dyer  v.  Parrott,  60  Cal.  551.] 

9.  Appeal    is    the  only  remedy  where  a  second  contract 


138          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

is  awarded  during  the  existence  of  a  previous  contract  for 
the  same  work.  [Spaulding  v.  Homestead  Ass'n,  87  Cal.  41.] 

10.  Appeal  is  the  only  remedy  where  a  lot,  properly 
assessable  under  section  7  of  the  act  and  chargeable  with 
a  portion  of  the  expenses  is  omitted  from  the  assessment. 
Dowling  v.  Altschul,  decided  June  13,  1893,  33  Pac.  Rep. 
495,  decision  of  department,  opinion  by  Commissioner 
Vanclief,  Mr.  Justice  Harrison  concurring  in  the  judg- 
ment but  not  in  the  opinion.  This  is  a  most  important 
decision,  and  if  in  such  case  an  appeal  is  the  only  remedy 
where  the  front-foot  plan  of  assessment  is  adopted,  there 
does  not  seem  to  be  any  reason  why  it  should  not  be  the 
only  remedy,  where  the  council  has  declared  an  assess- 
ment district  to  be  benefited  by  the  work  or  improvement,  as 
provided  for  by  section  3  of  the  act,  and  the  superin- 
tendent, in  assessing  the  lots  within  such  district, — as  pro- 
vided for  by  subdivision  12  of  section  7 — has  omitted  some 
lot  from  assessment.  There  is  an  assessment  district  in 
the  one  case  just  as  much  as  in  the  other.  In  the  one  case 
the  council  fixes  the  boundaries  of  the  district  and  declares 
it  the  district  to  be  benefited,  in  the  other  case,  i.  e.  where 
the  front-foot  plan  is  adopted,  the  statute  establishes  the 
district.  [See  Diggins  v.  Brown,  76  Cal.  318;  Davis  v.  City 
of  Los  Angeles,  86  Cal.  49;  Dyer  v.  Harrison,  63  Cal.  448; 
People  v.  Lynch,  51  Cal.  15.] 

VI.  Cases  in  which  it  has  been  held  that  Appeal  is  not  a 
Remedy. 

1.  Where    a   lot   is  not   liable  to    be  assessed  at  all,  the 
owner  is  not  a    party    directly    interested  in    the    contract, 
work,  or    assessment,  within  the  meaning  of  the  act,  and  is 
not    bound    to    appeal    from    the    assessment.       Although 
assessed,  and  in  that  sense  he  might  be  said  to  be  interested 
in  the    assessment,    the  section    does  not  mean  that  a  mere 
stranger  to    the  locality,  and  who  might  have  no  suspicion 
that  he  ,had  been    assessed  until    too  late    to  appeal,  should 
be  cut  off  from  his  defense.     [Bassett  v.  Enwright,  19   Cal. 
636.] 

2.  If  the    lot    is    not    assessed    to  "unknown  owner"  or 
to  the    true  owner  by  his   true  name,  the   owner   need  not 
appeal.     [Smith   v.  Cofran,  34   Cal.  316.]     On    page  317   it 
is   said:    "Nobody,  except  the   person  named  as  owner,  is  a 
party  to  the  assessment  at  all,  unless    the  owner  is  stated  as 
unknown,  and  one  not  a  party  to  the  assessment  in  one  of 
the    modes  designated,  is  in  no  way  affected    by  it."     He  is 
a  stranger  to  the  assessment,  and  a  stranger  to   the   assess- 
ment   need  not  appeal.     "On  the  other  hand,  if  a  lot  owner 
is  assessed   by  name    or  by  designation   'unknown    owner/ 


CASES    IX    WHICH  APPEAL    IS    NOT    REMEDY       M^'llflSS?       139 

and  is  a  party  to  and  bound  by  the  proceedings,  he  can  not 
attack  them  for  mere  error,  in  a  collateral  action.  In 
respect  to  such  error,  his  remedy  is  by  appeal."  [Bucknall 
v.  Story,  46  Cal.  589,  601.] 

S.  If  tha  contract  made  by  the  superintendent  calls 
for  less  work  than  is  described  in  the  resolution  of  intention 
and  the  award,  the  contract  is  void,  and  no  appeal  need  be 
taken.  "A  contract  authorized  and  executed  in  the  mode 
prescribed  by  the  act  is  indispensable  to  the  validity  of  the 
assessment.  This  defect  is  not  cured  by  the  failure  of  the 
lot  holders  to  appeal  to  the  board,  because  had  an  appeal 
been  taken,  the  defect  could  not  have  been  remedied  by 
the  board."  [Dougherty  v.  Hitchcock,  35  Cal.  512,  524, 
526.]  In  this  case  the  resolution  of  intention  described 
the  work  to  be  done  as  being  work  on  a  certain  street — 
Clay  street  in  San  Francisco — for  several  blocks  in  length, 
from  Taylor  to  Leavenworth  streets,  and  the  board  of  super- 
visors awarded  a  contract  for  the  whole  work.  The  only 
contract  entered  into  by  the  superintendent  was  for  the 
grading  of  one  block  only — that  from  Jones  to  Leavenworth 
streets.  To  the  same  effect  is  McBean  v.  Redick,  96  Cal. 
I'.U,  decided  under  the  present  street  improvement  act. 

In  Chambers  r.  Satterlee,  40  Cal.  498,  the  contract  made 
by  the  street  superintendent  included  more  work  than  that 
called  for  by  the  resolution  of  intention  and  the  award.  In 
that  case  the  board  ordered  the  street  to  be  graded — which 
of  course  means  to  the  ol\icial  grade — but  the  contract  pro- 
vided that  the  street  should  be  ''graded  to  the  official  height 
and  line," — and  then,  instead  of  stopping  here,  went  on  to 
say, — "  except  the  roadway,  which  is  to  be  graded  twelve 
inches  below  the  official  grade — and  when  completed  is  to 
have  a  crown  to  the  center  eighteen  inches  from  the  bottom 
of  the  gutter-ways."  Chambers  v.  Satterlee  differs  from 
Dougherty  v.  Hitchcock  in  this,  that  while  in  the  latter  case 
the  contract  made  by  the  superintendent  called  for  less 
work  than  the  award,  in  the  former  case  the  contract  called 
for  more.  In  Chambers  v.  Satterlee  it  was  held  that  an 
appeal  to  the  board  of  supervisors  was  the  only  remedy  of  a 
property  owner  dissatisfied  with  the  contract  made  by  the 
superintendent,  because  it  called  for  more  work  than  that 
described  in  the  resolution  of  intention,  and  the  concurring 
opinion  of  Mr.  Justice  Crockett  seems  to  present  the  clear- 
est reasoning  on  this  branch  of  the  case.  He  says,  page 
531:  "  In  embracing  in  the  contract  additional  work,  not 
ordered  to  be  done,  the  superintendent  committed  an  irreg- 
ularity which,  by  the  express  terms  of  the  statute,  could  be 
corrected  on  an  appeal  to  the  board  from  the  assessment." 


140    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

Whereas,  in  Dougherty  v.  Hitchcock,  the  written  contract  was 
for  less  work  than  that  called  for  by  the  award,  the  contract 
was  void,  and  the  defect  jurisdictional,  but  where  the  writ- 
ten contract  calls  for  more  work  than  the  award,  the  contract 
is  not  void — if  the  excess  can  be  segregated  from  that  prop- 
erly called  for  by  the  award — and  the  defect  is  not  jurisdic- 
tional. [See  also  Ferine  v.  Forbush,  97  Cal.  305.] 

4-  Where  the  written  contract  executed  by  the  street 
superintendent  gives  more  time  for  completion  than  that 
allowed  by  the  award,  it  is  void,  and  no  appeal  is  necessary. 
[Brock  v.  Luning,  89  Cal.  316.] 

5.  The  demand,  required  by  section  10  of   the  act  to  be 
made  by  the  contractor  or  his  assigns,  or  some    person  on 
his  or  their  behalf,  must  be  for  the  amount  properly  charge- 
able against  the  lot.     If   demand  is   made  for  more  than  is 
properly  chargeable,  the  contractor  or  his  assigns    can  not 
recover,  and  the  defense  is  not  affected  by  the  failure  of  the 
parties  aggrieved  to  appeal.     [Donnelly  v.  Howard,  60  Cal. 
292.] 

6.  If  the  contract  is  executed  by  the  superintendent  pre- 
maturely, it  is  void,  and  the  defect  is  not  waived    by  a  fail- 
ure to  appeal.     [Burke  v.  Turney,  54  Cal.  486;  Manning  v. 
Den,  90  Cal.  610;  Ferine  v.  Forbush,  97  Cal.  305. J 

VII.  Appeal  by  Contractor.  An  assessment  which, 
for  any  reason,  is  void  and  incurable,  does  not  create 
any  lien  upon  the  land  assessed,  and  the  owner 
thereof  is  not  required  to  appeal  to  the  city  coun- 
cil, because  he  is  not  a  person  "aggrieved,"  within  the 
meaning  of  that  term  as  used  in  the  statute.  The  con- 
tractor, however,  may  appeal,  and,  on  appeal, 
may  have  curable  errors  corrected.  [Frick  v.  Morford,  87 
CaL  576,  580;  Smith  v.  Cofran,  34  Cal.  310.]  Under  the 
provisions  of  the  statute,  the  assessment  and  warrant,  after 
having  been  iccorded,  are  put  into  the  hands  of  the  con- 
tractor, and  he  has  thirty  days  from  the  date  of  the  warrant 
within  which  to  examine  it,  and  if  found  in  any  respect  to 
be  incorrect  or  illegal,  to  apply  to  the  council  by  appeal  to 
have  it  corrected  and  made  legal.  In  Smith  v.  Cofran,  34 
Cal.  page  315,  Mr.  Justice  Sawyer  said:  "  All  the  means 
open  to  the  superintendent  for  determining  the  correctness 
and  legality  of  the  assessment  and  warrant  are  equally  open 
to  the  contractor,  and  an  opportunity  is  aftorded  to  examine 
the  proceedings  and  apply  for  correction  if  found  to  be 
incorrect  or  illegal.  Moreover,  as  we  have  said,  it  is  pro- 
vided that  the  'contractor  *  *  *  having  or  making  any 
objection  to  the  correctness  or  legality  of  the  assessment  * 
*  *  shall  *  *  *  appeal  to  the  board  of  supervisors/ 


SECTION  TWELVE    OF    THE    ACT          82^i?iga^WI       141 


etc.  Thus,  if  he  has  objections  of  the  kind  in  question,  he 
not  only  has  an  opportunity,  but  it  is  made  his  duty,  to 
have  them  obviated  in  the  mode  prescribed.  If  he  fails  to 
avail  himself  of  the  means  of  protection  afforded  by  the 
law,  the  loss  in  consequence  of  defects  of  the  kind  under 
consideration  results  as  much  from  his  own  negligence  as 
from  that  of  the  superintendent." 

VIII.  Unsuccessful  Appeal  no  Estoppel  in  Action  onAssess- 
ni<  nt.     If  an  assessment  is,  for  any  reason,  illegal,  and  a  prop- 
erty owner  takes  an  appeal   to   the  council  and  the  council 
denies  him  relief,  the  fact  that  he  has  taken  this  unsuccess- 
ful appeal  will  not  estop  him  from  relying  upon  the  defects 
in  the  assessment    in    any    action    brought  thereon.      The 
jurisdiction    of  the    council    being    limited    and  special,  it 
may  be  shown  that  the    facts    conferring  jurisdiction  upon 
them  did  not  exist.     [Mannings.  Den,  90  Cal.  611;  Dehail 
r.  Morford,  <)^  Cal.  4.17.  | 

IX.  Council    Cannot  Dismiss  Appeal.     If  an    appeal    to 
the    council     be    taken     by     a    property    owner    in    time 
and     regularly,    the     council     has    no     power    to    dismiss 
it;     and     even    if     an    order   is    made     dismissing    it,    the 
appeal     is     regarded     as     still     pending,     the    assessment 
does    not  become  a    finality,   and   an    action    can    not    be 
maintained    on    it.      [People    v.    O'Neil,    51    Cal.    91.]    If, 
however,  it  does  not  appear  that  any  testimony  was  offered 
by  the  person  taking  the  appeal,  as  this    fact   is    consistent 
with  the  fact  that  the  only  mutter  urged  on  the  appeal  was 
a    question    of  law,    the    appeal  will    not    be    regarded    as 
still   pending,  and    an   action  might  be    maintained  on  the 
assessment.     [Mahoney  v.  Braverman,  54  Cal.  565,  570.] 

X.  Practice  on  Appeal.     On  appeal  the   same  strictness 
which  would  be  required  in    a   pleading  at  common  law  is 
not  exacted  from  persons   objecting   to   an    assessment    in 
stating  their  objections.     [Barber  v.  San  Francisco,  42  Cal. 
630.] 

SECTION  12.  At  any  time  after~the  period  of  thirty-five  days  from  the 
day  of  the  date  of  the  warrants,  as  herein  provided,  or  if  an  appeal  is 
taken  to  the  city  council,  as  provided  in  section  eleven  of  this  act,  at  any 
time  after  live  days  from  the  decision  of  said  council,  or  after  the  return 
of  the  warrant  or  assessment,  after  the  same  may  have  heen  corrected, 
altered  or  modified,  as  provided  in  said  section  eleven  (but  not  less  than 
thirty-five  days  from  the  date  of  the  warrant),  the  contractor  or  his  assignee 
may  sue,  in  his  own  name,  the  owner  of  the  land,  lots  or  portions  of  lots, 
assessed  on  the  day  of  the  date  of  the  recording  of  the  warrant, 
assessment  and  diagram,  or  any  day  thereafter  during  the  con- 
tinuance of  the  lien  of  said  assessment,  and  recover  the  amount  of  any 
assessment  remaining  unpaid,  with  interest  thereon  at  the  rate  of  ten  per 


142    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

cent,  per  annum  until  paid.  And  in  all  cases  of  recovery  under  the  pro- 
visions of  this  act  the  plaintiff  shall  recover  the  sum  of  fifteen  dollars  in 
addition  to  the  taxable  cost,  as  attorney's  fees,  but  not  any  percentage 
upon  said  recovery.  And  when  suit  has  been  brought,  after  a  personal 
demand  has  been  made  and  a  refusal  to  pay  such  assessment  so  demanded, 
the  plaintiff  shall  also  be  entitled  to  have  and  recover  said  sum  of  fifteen 
dollars  as  attorney's  fees  in  addition  to  all  taxable  costs,  notwithstanding 
that  the  suit  may  be  settled  or  a  tender  may  be  made  before  a  recovery  in 
said  action,  and  he  may  have  judgment  therefor.  Suit  may  be  brought  in 
the  Superior  Court  within  wrhose  jurisdiction  the  city  is  in  which  said 
work  has  been  done,  and  in  case  any  of  the  assessments  are  made  against 
lots,  portions  of  lots,  or  lands  the  owners  thereof  cannot,  with  due  dili- 
gence, be  found,  the  service  in  each  of  such  actions  may  be  had  in  such 
manner  as  is  prescribed  in  the  codes  and  laws  of  this  state.  The  said  war- 
rant, assessment,  certificate  and  diagram,  with  the  affidavit  of  demand 
and  non-payment,  shall  be  held  prima  facie  evidence  of  the  regularity  and 
correctness  of  the  assessment  and  of  the  prior  proceedings  and  acts  of  the 
suparintendent  of  streets  and  city  council  upon  which  said  warrant, 
assessment  and  diagram  are  based,  and  like  evidence  of  the  right  of  the 
plaintiff  to  recover  in  tiie  action.  The  court  in  which  said  suit  shall  be 
commenced  shall  have  power  to  adjudge  and  decree  a  lien  against  the 
premises  assessed,  and  to  order  such  premises  to  be  sold  on  execution,  as 
in  other  cases  of  the  sale  of  real  estate  by  the  process  of  said  courts ;  and 
on  appeal  the  appellate  courts  shall  be  vested  with  the  same  power  to 
adjudge  and  decree  a  lien  and  to  order  such  premises  to  be  sold  on  execu- 
tion or  decree  as  is  conferred  on  the  court  from  which  an  appeal  is  taken. 
Such  premises,  if  sold,  may  be  redeemed  as  in  other  cases.  In  all  suits 
now  pending,  or  hereafter  brought  to  recover  street  assessments,  the  pro- 
ceedings therein  shall  be  governed  and  regulated  by  the  provisions  of  this 
act.  and  also,  when  not  in  conflict  herwith,  by  the  codes  of  this  state. 
This  act  shall  be  liberally  construed  to  effect  the  ends  of  justice.  [Amend- 
ment approved  March  14,  1889,  statutes  1889,  page  168.] 

[Section  12  was  amended  in  1889  by  act  of  March  14,  1889,  statutes  '89, 
page  168.] 

Section  12  of  the  act  contains  the  provisions  relating  to 
suits  to  enforce  the  assessment  lien.  It  provides  that  at 
any  time  after  the  period  of  35  days  from  the  date  of  the 
warrant,  or  at  any  time  after  5  days  from  the  decision  of 
the  council  on  appeal, — if  an  appeal  has  been  taken  as  pro- 
vided in  section  11, — or  after  the  return  of  the  warrant  or 
assessment,  after  the  same  have  been  corrected,  altered  or 
modified  on  appeal,  as  provided  in  section  11,  (but  not  less 
than  35  days  from  the  date  of  the  warrant)  the  contractor 
or  liis  assignee,  may  sue  in  the  Superior  Court  within 
whose  jurisdiction  the  city  is  in  which  the  work  was  done, 
and  recover  the  amount  of  any  assessment  remaining 
unpaid,  with  interest  thereon  at  the  rate  of  ten  per  cent,  per 
annum  until  paid,  etc.  The  section  provides  that  the  pro- 
ceedings "shall  be  governed  and  regulated  by  the  provisions 


GENERAL    PRINCIPLES   OF    PROCEDURE  'i"jj5?*d**       143 

of  this  act,  and  also,  when  not  in  conflict  herewith,  by  the 
codes  of  this  state." 

I.  Procedure-,  (rcneral  Principles.  When  the  assessment 
is  invalid,  but  the  property  owner  has,  nevertheless, 
allowed  the  contractor  to  proceed  with  the  work  to  comple- 
tion without  objection  so  that  his  property  has  thereby 
received  the  benefit  of  the  improvement,  he  cannot,  by 
injunction,  enjoin  the  sale  of  the  land  for  the  purpose  of 
avoiding  the  payment  of  his  assessment.  Injunction  pro- 
ceedings, if  desired,  must  be  instituted  before  the  work  is 
done.  This  is  upon  the  principle  that  he  who  seeks  equity 
must  do  equity.  If  the  proceedings  are  irregular  the  prop- 
erty owner  will  be  left  to  his  strict  legal  rights,  if  he  has  any; 
and  in  an  action  by  ulie  contractor  or  his  assigns  to  enforce 
the  assessment  lien,  the  property  owner  may  set  up  the 
irregularities  by  way  of  a  defense  to  the  action.  But  he 
can  not  seek  the  aid  of  equity  unless  he  is  prepared  to  do 
equity,  and  therefore  can  not,  by  injunction,  prevent  a  sale 
of  the  property,  unless  he  is  prepared  to  pay  at  least  the 
reasonable  value  of  the  improvement  to  his  property  or  the 
amount  which  in  equity  and  good  conscience  he  ought  to 
pay.  [Weber  r.  San  Francisco.  1  Cal.  455.]  The  rule  is  the 
same  whether  the  acts  complained  of  are  mere  irregularities 
or  such  as  render  the  assessment  illegal  and  void.  [Ester- 
brook  v.  O'Brien,  decided  July  13,  1893,  33  Pac.  Rep'  765.] 
In  this  case  the  court  said:  "Courts  of  equity  do  not 
review  the  proceedings  of  officers  entrusted  with  the  assess- 
ment of  the  property.  If  proceedings  taken  by  them  are 
void,  no  title  will  pass  by  a  sale  of  the  real  estate,  and  the 
party  claiming  to  be  injured  must  litigate  his  rights  in  an 
action  at  law  for  the  possession  of  the  premises.  Of  course 
there  are  exceptions  to  the  rule,  as  where  it  is  shown  that  the 
la  mis  are  not  at  all  subject  to  taxation,  or  that  there  is  no  law 
authorizing  any  proceedings  therefor.  So 

long  as  the  moral  obligation  to  pay  any  portion  of  the  tax 
exists,  a  court  of  equity  will  not  lend  its  aid  to  prevent  a 
cloud  upon  the  title,  but  will  leave  the  party  to  his  remedy 
at  law."  [See  also  Bucknall  v.  Story,  36  Cal.  67;  Lent  v. 
Tillson,  72  Cal.  433.] 

According  to  the  express  provision  of  the  contract,  neither 
the  city  nor  the  city  authorities  are  to  be  held  liable  in  any 
event.  Only  the  property  assessed  can  be  held  liable.  [See 
section  6.]  Nor  can  the  legislature  appropriate  money  to 
pay  the  claim  of  a  contractor  who  has  failed  to  obtain  com- 
pensation for  the  work  done  by  him,  by  reason  of  any  errors, 
omissions  or  irregularities  of  the  municipal  officers,  which 
prevented  them  from  having  jurisdiction  to  order  the  work 


144          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

done,  or  rendered  the  contract  or  assessment  invalid,  nor  can 
the  legislature  empower  the  municipal  authorities  of  a  city 
to  appropriate  or  pay  any  money  for  any  such  purpose.  An 
act  of  the  legislature  appropriating  public  monevs  to  pay 
any  portion  of  the  claim  of  a  contractor  who  failed  to  recover 
from  thft  property  owner,  because  of  ii regularities  in  the 
proceedings  committed  by  the  municipal  authorities,  or  an 
act  to  empower  the  city  authorities  of  a  city  to  pay  city 
moneys  to  such  contractor,  under  such  circumstances,  would 
be  a  "gift"  within  the  meaning  of  section  31  of  article  IV  of 
the  constitution,  and  such  legislative  act  would,  therefore, 
be  unconstitutional  and  void.  The  contractor  must  look  to 
the  property  of  the  property  owners,  as  provided  by  section 
12  of  the  act;  and,  to  entitle  him  to  recover  against  them, 
the  proceedings  must  be  regular  and  valid  or  capable 
of  correction  by  the  council  on  appeal. [Conlin  v.  Board  of 
Supervisors  of  San  Francisco,  decided  July  21,  1893,  33 
Pac.  Rep.  753.] 

The  statute  under  which  the  contract  is. made  becomes  a 
part  of  the  contract,  and  the  provisions  of  the  statute  in 
reference  to  the  enforcement  of  the  assessment  lien  and  the 
remedies  of  the  contractor  are  not  affected  by  a  subsequent 
repealing  act, — so  far  as  such  contract  is  concerned,  [Creigh- 
ton  v.  Pragg,  21  Gal.  115;  Dyer  v.  Pixley,  44  Cal.  153;  Dyer 
v.  North,  44  Cal.  157-160;  Dyer  v.  Barstow,  53  Cal.  81.]  " 

The  action  is  not  upon  the  contract.  If  it  were,  it  is  prob- 
able that  the  assignee  of  a  contractor  could  not  sue  his 
assignor  when  the  latter  is  also  a  property  owner,  since  the 
assignee  would  stand  in  the  shoes  of  his  assignor,  the  con- 
tractor, and  the  contract  would  create  no  right  in  the  con- 
tractor against  himself.  The  action  is  in  reality  an  action 
to  collect  a  tax.  The  city  government  and  the  contractor 
are  the  only  parties  to  the  proceeding,  so  far  as  making  the 
improvement  is  concerned;  that  being  done,  the  city  govern- 
ment acts  alone  in  its  political  capacity  in  apportioning  and 
levying  the  tax  upon  the  property  of  the  property  owner  or 
taxpayer;  but  when  provision  is  made  for  the  collection  of 
the  tax,  the  city  government  steps  out  of  the  triangular  rela- 
tion existing  between  the  contractor,  the  city  government 
and  the  property  owner  or  taxpayer,  and  the  contractor  is 
thrust  into  her  place  and  made  her  agent  for  the  purpose  of 
collecting  the  tax.  "Independent  of  the  statute,  the  tax 
would  be  due  from  the  taxpayer  to  the  city,  and  the  city 
would  have  to  demand  and  sue  for  it,  if  necessary;  but  the 
statute  provides  that  the  city  shall  not  be  responsible  for 
the  collection  of  the  tax,  or  subject  to  the  risk,  trouble  and 
annoyance,  but  shall  virtually  assign  her  right  of  action  for 


GENERAL    PRINCIPLES   OF    PROCEDURE       f&Jiuf  is8oend0d        145 


the  tax  to  the  contractor,  in  full  payment  for  his  work  and 
labor  under  her  contract  with  him,  and  authorize  him  to 
sue  in  his  own  name  to  recover  it,  if  necessary.  This  being 
done,  his  relation  of  contractor  is  at  an  end.  *  *  *  The 
thing  sued  for  is  not  the  contract  price,  or  a  part  of  it,  but 
the  tax  specified  in  the  assessment,  or  warrant,  for  which  he 
sues,  not  as  contractor,  but  as  assignee  of  the  city,  and  he  is 
compelled  to  make  the  same  averments  and  the"  same  proof 
which  the  city  would  have  had  to  make  had  she  undertaken 
to  collect  the  tax;  in  other  words,  he  has  to  show  that  the 
entire  proceedings  which  terminated  in  imposing  upon  the 
property-holder  a  liability  to  pay  the  tux  in  suit  have  been  in 
conformity  with  the  provisions  of  the  statute  by  which  the 
tax  was  authorized.  Without  doing  this,  the  city  could  not 
Imvo  recovered  under  the  more  ordinary  mode  adopted  in 
such  case,  nor  can  he."  [Hendrick  v.  Crowley,  31  Gal 
472.] 

The  title  to  a  lot,  if  put  in  issue  by  the  pleadings,  may  be 
litigated  in  an  action  on  the  assessment.  All  the  owners 
of  the  lot  must  be  made  defendants,  and  if  any  defendant 
denies  his  ownership  this  is  a  material  issue  and  may  be 
litigated.  [Taylor  v.  Donner,  31  Cal.  481;  Robinson  v. 
Merrill,  87  Oaf.  11.] 

The  relief  sought  in  actions  on  street  assessments  is  equit- 
able, and  the  action  an  action  in  equity,  and  consequently 
must  bo  brought  in  the  Superior  Courts,  without  reference 
to  the  amount  claimed.  [Mahlstadt  v.  Blanc,  34  Gal.  577.] 

The  contractor  does  not  lose  his  lien  by  the  mere  lapse 
of  two  years  before  the  entry  of  judgment,  provided  his 
action  be  commenced  within  that  time.  [Randolph  v. 
Bayue,  44  Cal.  367;  Dougherty  v.  Henarie,  47  Cal.  9;  Him- 
melmanii  v.  Carpentier,  47  Cal.  42;  Borland  v.  McGlynn, 
47  Cal.  48.] 

An  action  can  not  be  maintained  to  enforce  a  lien  for  a  street 
improvement,  unless  the  lien  exists  at  the  time  the  action 
is  commenced,  and  therefore,  even  if  it  be  admitted  that 
the  legislature  lias  the  constitutional  right  to  validate  an 
assessment  for  improving  a  street,  the  validating  act,  if  of 
any  effect,  makes  the  assessment  valid  only  from  the  time 
of  its  passage.  So  that  pending  suits  brought  to  enforce  the 
lien  are  not  affected  by  the  act,  and  there  can  be  no  recov- 
ery in  such  suits  by  reason  of  such  act.  [Reis  v.  Graff,  51 
Cal.  86;  People  v.  O'Neil,  51  Cal.  91;  People  v.  Kinsman, 
51  Cal.  92;  see  People  v.  Lynch,  51  Cal.  15.] 

While  there  can  be  no  personal  judgment  against  the 
owner  of  the  property  [Taylor  v.  Palmer,  31  Cal.  241;  Man- 
ning v.  Den,  90  Cah  610],  still  the  action  to  enforce  the 


140    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

lien  is  not  a  suit  in  rem  against  the  real  estate  only.  On 
the  contrary  the  statute  provides  that  the  action  must  he 
against  the  owner  to  enforce  the  lien.  [City  of  Santa  Bar- 
bara v.  Huse,  51  Cal.  217.] 

II.     Parties. 

(a.)  Plaintiffs.  The  act  expressly  provides  that  the  con- 
tractor or  his  assignee  may  sue  in  his  own  name;  likewise, 
that  the  proceedings  shall  be  governed  and  regulated  by 
the  codes  of  this  stute,  when  not  in  conflict  with  the  pro- 
visions of  the  act. 

(b.)  Defendants.  The  act  provides  that  the  contractor 
or  his  assignee  may  sue  the  owner  of  the  land,  lots  or  por- 
tion of  lots  assessed,  on  the  day  when  the  amounts  assessed 
became  a  lien  thereon, — viz.,  on.  the  day  when  the  warrant, 
assessment,  diagram  and  certificate  of  the  city  engineer 
were  recorded — or  any  day  thereafter  during  the  continu- 
ance of  the  lien  of  the  assessment. 

All  the  owners  of  the  property  must  be  made  defend- 
ants and  they  must  all  be  served  with  summons, 
and  if  all  the  owners  are  not  made  parties  defendant 
the  defendant  may  set  up  this  fact  in  his  answer,  and  urge 
it  as  a  reason  why  judgment  should  not  be  entered  against 
him  until  all  the  owners  are  brought  into  court.  The  lien 
can  not  be  enforced  against  any  of  the  owners  in  the 
absence  of  another  owner  who  is  not  joined  as  a  defendant. 
[Hancock  v.  Bowman,  49  Cal.  413;  Clark  v.  Porter,  53  Cal. 
409;  Diggins  v.  Reay,  54  Cal.  525;  Harney  v.  Appelgate,  57 
Cal.'  205;  Robinson  v.  Merrill,  87  Cal.  11.] 

See  section  16  of  the  act  for  a  definition,  description  or 
enumeration  of  the  persons  who  are  declared  by  the  act 
"shall  be  regarded,  treated  and  deemed  to  be  the  'owner' 
[for  the  purpose  of  this  law]  according  to  the  intent  and 
meaning  of  that  word  as  used  in  this  act." 

It  was  hel.l  in  Parker  v.  Bernal,  66  Cal.  113,  that,  under 
the  San  Francisco  street  work  act  of  1872,  an  action  on  a 
street  assessment  may  be  maintained  against  the  executor 
of  an  estate,  although  the  heirs  of  the  decedent  are  in  fact 
the  owners  of  the  land  assessed;  that  the  heirs  are  not  nec- 
essary parties,  and  if  originally  joined  as  defendants  the 
action  may  be  dismissed  as  to  chem  and  judgment  rendered 
against  the  executor. 

But  in  Phelan  v.  Dunne,  72  Cal.  229,  it  was  held  that 
where  the  owner  dies  prior  to  the  assessment  his  heirs  or 
devisees  are  the  only  necessary  parties,  and  the  executors 
need  not  be  joined. 

In  this  case  of  Phelan  v.  Dunne  the  work  had  been  done 
under  the  San  Francisco  street  improvement  act  of  April 


PARTIES,  WHO    NECESSARY    DEFENDANTS       fS^"  f8™9en<led       147 


1,  1872.  The  defendant  was  the  devisee  of  James  Dunne. 
The  contract  \vas  let  prior  to  the  death  of  James  Dunne, 
who  was  the  owner  of  the  land  at  that  time,  but  the  assess- 
ment was  not  made  until  after  his  death.  It  was  claimed 
by  defendant  that  the  administration  of  the  estate  of  James 
Dunne,  deceased,  being  still  open,  and  no  decree  of  distri- 
bution having  been  made,  the  executors  of  the  will  should 
be  made  parties  defendant.  In  this  connection  the  court 
said:  "By  an  act  approved  April  1,  1872,  and  apparently  to 
avoid  the  necessity  of  making  all  parties  having  an  inter- 
est in  the  property  defendants  in  the  action,  it  was  provided 
[section  13]  that  the  action  might  be  brought  against  the 
owner  of  the  land;  and  section  17  of  the  act  provides  that  'the 
person  owing  the  fee  or  the  person  in  the  possession  of  the 
lands,  lots,  or  portions  of  lots  or  buildings  under  the  claim 
of  ownership,  or  exercising  acts  of  ownership  over  the  same 
for  himself  or  as  the  administrator  or  guardian  of  the 
owner,  or  the  person  in  whom,  on  the  day  the  action  was 
commenced,  appears  the  legal  title  to  the  lands  by  deeds 
recorded  in  the  recorder's  office  in  the  city  and  county  of 
San  Francisco,  shall  be  regarded,  treated  and  deemed  to  be 
the  owner  [for  the  purpose  of  this  law],  according  to  the 
meaning  and  intent  of  that  word  as  used  in  this 
act.'  It  may  be  that  under  these  provisions  persons 
other  than  the  heirs  and  devisees  are  proper  parties 
to  the  action;  and  that  their  rights  cannot  be  fore- 
closed unless  they  are  made  defendants;  but  as  to 
that  we  express  no  opinion.  It  is  sufficient  to  say  that 
the  defendant  is  the  owner  in  fee,  that  he  is  the  only 
necessary  party,  and  that  plaintiff  is  entitled,  under  this 
act,  to  a  decree  of  foreclosure,  whatever  may  be  the  rights 
of  other  parties  interested  who  are  not  joined  as  defend- 
ants." Section  12  of  the  Vrooman  act  is  substantially  the 
same  as  section  13  of  the  said  act  of  April  1,  1872;  and  likewise 
section  16  of  the  Vrooman  act  is  substantially  the  same  as 
section  17  of  the  said  act  of  April  1,  1872,  except  that  the 
former  is  a  general  act,  while  the  provisions  of  the  latter 
were  confined  to  the  city  and  county  of  San  Francisco,  and 
the  former  expressly  includes  "executors"  in  the  same 
category  with  administrators  and  guardians  of  the  owner, 
so  that  the  present  street  improvement  act  (section  16)  pro- 
vides that  "the  person  *  *  *  exercising  acts  of  owner- 
ship over  [the  lands,  lots,  etc.,]  *  *  *  as  the  executor 
*  *  of  the  owner  shall  be  regarded,  treated  and  deemed 
to  be  the  'owner,'  "  etc.  But  whether  this  provision  is 
sufficient  to  make  the  executor  a  necessary  party  may  be 
open  to  question,  since,  under  the  decision  in  Phelan  v. 


148    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

Dunne,  supra,  the  fee  is  vested  in  the  devisee,  and  if  he  be 
made  a  party  defendant  the  suit  is  brought  against  the 
"owner."  And  the  present  street  improvement  act  (section 
12)  like  the  said  act  of  April  1,  1872,  only  requires  the 
action  to  be  brought  against  the  "owner,"  and  not  against 
all  persons  interested  in  the  land. 

In  Brady  v.  Burke,  90  Cal.  1,  it  was  held  that  the  statute 
under  which  the  work  was  done  and  proceedings  had.  in 
that  case,  contemplated  that  the  legal  owner  at  the  time  of 
the  rendition  of  the  judgment  should  be  a  party  $  unless  he 
is  a  purchaser  pendente  lite  affected  with  notice  of  the  action; 
and  that  one  who  has  acquired  title  to  the  land,  under  the 
foreclosure  of  a  prior  street-assessment  lien,  pending  a  suit 
for  the  foreclosure  of  later  assessment  liens,  but  without 
notice  of  such  suit,  should  be  made  a  party  thereto  before 
judgment,  and  he  is  not  bound  by  the  judgment  if  not  so 
made  a  party  defendant. 

It  does  not  appear  from  the  opinion  in  this  case  what  act 
it  was  under  which  the  street  work  in  question  was  done,  so 
that,  when  the  court  says  that  the  act  contemplated  that  the 
legal  owner  at  the  time  of  the  rendition  of  the  judgment 
should  be  a  party,  it  cannot  be  known  from  the  opinion 
which  street  improvement  act  was  referred  to;  but  it  was 
one  of  the  San  Francisco  street  improvement  acts,  and  in 
this  respect  there  does  not  seem  to  bo  any  material  difference 
between  any  one  of  the  former  San  Francisco  street 
improvement  acts  and  the  present  street  improvement  act; 
so  that  it  is  probable  that  the  present  street  improvement 
act  likewise  contemplates  that  the  legalowner  at  the  time 
of  the  rendition  of  the  judgment  shall  be  a  party.  In  fact; 
this  conclusion  seems  to  be  deducible  from  the  provisions 
of  the  present  street  improvement  act  itself,  from  internal 
evidences,  and  seems  to  require  no  authority  to  support  it. 

III.     Pleadings. 

1.  What  Statute  Governs.  Under  the  old  constitution r 
it  was  held  that  the  legislature,  in  actions  to  recover  upon 
street  assessments,  might  prescribe  the  requirements  of  the 
complaint,  and  prescribe  for  such  actions  special  rules  of 
pleading  and  practice.  [Richardson  v.  Tobin,  45  Cal.  30; 
Whiting  v.  Townsend,57  Cal.  515.]  But,  under  the  present 
constitution,  the  legislature  is  prohibited  from  passing  any 
special  or  local  laws  regulating  the  practice  of  courts  of  just- 
ice. "The  legislature  shall  not  pass  local  or  special  laws  in 
any  of  the  following  enumerated  cases,  that  is  to  say:  *  * 
Third.  Regulating  the  practice  of  courts  of  justice.  *  * 
Thirty-third.  In  all  other  cases  where  a  general  law 
can  be  made  applicable."  [Const.  Art.  IV,  §  25,  subdivi- 


'PLEADINGS,  WHAT  STATUTE  GOVERNS.     MarchusiSended     149 

sions  3  and  33.]  The  Code  of  Civil  Procedure  of  this  state 
is  a  general  law,  and  as  such  must  have  a  uniform  operation. 
[Const,  article  I,  section  11.]  And  section  421  of  the  Code 
of  Civil  Procedure  provides  that  "the  forms  of  pleadings  in 
civil  actions,  and  the  rules  by  which  the  sufficiency  of  the 
pleadings  is  to  be  determined,  are  those  prescribed  in  this 
code."  Accordingly,  the  question  presents  itself:  Can  the 
legislature,  without  contravening  the  above  quoted  provi- 
sions of  the  constitution,  make  any  rules  of  pleading  or  of 
evidence,  or  of  practice  generally,  whose  application  shall 
be  limited  and  confined  to  cases  arising  under  this  street 
improvement  act?  And  if  it  can,  how  far  may  it  proceed  in 
that  direction?  ' 

In  People  v.  Central  Pac.  R.  R.  Co.,  83  Cal.  393,  it  was 
held  that  the  provisions  of  the  Political  Code  (section  3665 
to  3670)  relating  to  the  assessment  and  collection  of  taxes 
levied  upon  railroads  operated  in  two  or  more  counties,  are 
in  conflict  with  said  section  25  of  article  IV  of  the  consti- 
tution. It  was  held  in  that  case  that  section  3670  of  the 
Political  Code,  which  purported  to  provide  the  form  of 
complaint  in  suits  to  recover  taxes  levied  upon  railroads 
operated  in  two  or  more  counties,  was  special  legislation 
and  therefore  unconstitutional;  that  the  sufficiency  of  the 
complaint  in  an  action  to  recover  delinquent  taxes  must  be 
tested  by  the  rules  of  pleadings  in  civil  actions  prescribed 
by  the  Code  of  Civil  Procedure,  and  not  by  section  3670  of 
the  Political  Code;  and  that  thus  tested  the  complaint  in 
that  case  was  insufficient.  Mr.  Chief  Justice  Beatty  dis- 
sented, and  in  his  dissenting  opinion  said:  "In  my  opinion, 
the  legislation  referred  to  is  neither  local  nor  special;  it  is 
not  local,  because  it  operates  throughout  the  state;  and  it 
is  not  special,  because  it  applies  to  all  railroads  of  a  class 
created  and  defined  by  the  constitution  itself." 

The  decision  in  this  case  might  leave  the  question  as  to 
the  power  of  the  legislature  to  enact  rules  of  practice  appli- 
cable only  to  street  assessment  cases,  somewhat  in  doubt. 
But  a  recent  decision  of  the  Supreme  Court,  bearing 
directly  upon  street  assessment  suits  [McDonald  v.  Conniff, 
No.  15,085,  decided  Aug.  30,  1893],  does  much  to  remove 
this  question  from  the  realm  of  doubt,  and  the  case  seems 
to  be  ample  authority  for  the  proposition  that  the  legisla- 
ture may  prescribe  different  rules  of  procedure,  as  well  of 
pleading  as  of  evidence,  for  different  classes  of  action,  e.  g., 
for  action  brought  to  foreclose  street  assessment  liens.  All 
of  such  actions  constitute  a  class  by  themselves.  Mr.  Jus- 
tice Harrison,  delivering  the  opinion  of  the  court,  said: 

"The  statute  makes  the  assessment,  with,  the  other  docu- 


150    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

ments  offered  by  the  plaintiff,  prim  a  facie  evidence  of  the 
regularity  and  correctness  of  the  assessment  and  of  the  prior 
proceedings  and  acts  of  the  superintendent  of  streets  and 
city  council  upon  which  it  is  based,  and  it  was  therefore 
not  necessary  to  offer  any  evidence  of  these  prior  proceed- 
ings as  the  foundation  for  introducing  these  documents. 
It  is  competent  for  the  legislature  to  prescribe  rules  of 
evidence  for  the  trial  of  actions,  and  statutes  which  make  a 
document  prima  facie  evidence  of  the  regularity  of  official 
proceedings  in  reference  thereto,  or  which  cast  the  burden 
of  proof  in  an  issue  upon  either  party  to  the  action,  are 
within  the  constitutional  power  of  the  legislature.  [Cooley 
Const.  Lira.,  450.]  Neither  does  this  provision  of  the  statute 
contravene  the  provision  of  the  constitution  prohibiting 
the  legislature  from  passing  special  or  local  laws  'regulat- 
ing the  practice  of  courts  of  justice.'  It  is  not  necessary 
that  a  law  shall  affect  all  the  people  of  the  state  in  order 
that  it  may  be  general,  or  that  a  statute  concerning  pro- 
cedure shall  be  applicable  to  every  action  that  may  be 
brought  in  the  courts  of  the  state.  A  statute  which  affects 
all  the  individuals  of  a  class  is  a  general  law,  while  one 
which  relates  to  particular  persons  or  things  of  a  class  is 
special.  A  statute  regulating  the  rights  of  married  women, 
or  which  affect  all  mining  corporations,  or  confers  rights 
upon  municipal  corporations  of  a  certain  class,  or  places 
restrictions  upon  all  foreign  corporations,  is  a  general  law. 
[City  of  Pasadena  v.  Stimson,  91  Cal.  238;  In  re  Madera 
Irrigation  District,  92  Cal.  316;  Wheeler  v.  Philadelphia, 
77  Penn.  348;  Iowa  R.  R.  Co.  v.  Soper,  39  Iowa,  112;  Mat- 
ter of  N.  Y.  Elevated  R.  R.  Co.,  70  N.  Y.  350.]  The  provi- 
sion under  consideration  is  neither  a  local  nor  a  special 
law.  It  is  applicable  to  all  actions  for  the  foreclosure  of 
street  assessment  liens,  and  is  in  force  in  all  parts  of  the 
state.  That  the  legislature  may  prescribe  different  rules  of 
procedure,  as  well  of  pleading  as  of  evidence,  for  different 
actions,  is  illustrated  by  what  it  has  done  in  defining  the 
form  of  pleading  upon  judgments  and  in  other  special 
actions,  in  requiring  the  pleadings  in  forcible  entry  and 
detainer  to  be  verified,  in  denying  a  divorce  upon  the  mere 
default  of  the  defendant,  in  making  a  tax  deed  prima  facie 
evidence  of  the  regularity  of  the  proceedings  prior  to  its 
issuance,  and  in  requiring  a  different  form  of  proof  for  the 
execution  of  a  will  from  that  of  any  other  written  instru- 
ment as  well  as  in  numerous  other  instances." 

And  in  City  and  County  of  San  Francisco  v.  Kiernan,  33 
Pac.  721,  decided  June  13,  1893,  it  was  held  that  section 
18  of  the  Street  Opening  act  of  March  6,  1889,  [statutes 


PLEADINGS  -  GENERAL    PRINCIPLES       M^'i^gg60*6*1       151 


1889,  p.  75]  providing  that  "the  complaint  (in  an  action  to 
condemn)  may  aver  that  it  is  necessary  for  the  city  to  take 
or  damage  and  condemn  the  said  land^  *  *  *  "without 
setting  forth  the  proceedings  herein  provided  for,"  is  con- 
stitutional. 

2.     Complaint,  What  Must  Allege. 

(a.)  General  Principles.  A  complaint  to  recover  the 
amount  of  an  assessment  for  street  improvements  should 
show  by  general  or  special  averments  a  compliance  by 
the  council  and  city  authorities  with  all  the  steps  prescribed 
by  law  to  confer  jurisdiction  on  the  council  and  to  vest  a 
right  of  action  in  the  plaintiff.  [Himmelinau  v.  Danos, 
35  Gal.  441;  People  v.  Clark,  47  Gal.  456.]  An  action  to 
recover  the  amount  of  a  street  assessment  is,  in  reality,  an 
action  to  recover  a  tax.  As  stated  by  Sanderson,  J.,  in  Hend- 
rick  r.  Cruwley,  31  Gal.  471,  "The  thing  sued  for  is  not  the 
contract  price  or  a  part  of  it,  but  the  tax  specified  in  the 
assessment  or  warrant,  for  which  he  sues,  not  as  contractor 
or  as  assignee  of  somebody  else  who  was  the  contractor, 
but  as  assignee  of  the  city,  and  he  is  compelled  to  make 
the  same  averments  and  the  same  proof  which  the  city 
would  have  had  to  make  had  she  undertaken  to  collect  the 
tax."  And  in  People  v.  Central  Pac.  R.  R.  Co.,  83  Gal. 
400,  it  is  said:  ''Tax  proceedings  are  in  invitum,  and,  to 
be  valid,  must  be  stricti  juris.  If  not  valid  they  constitute 
no  cause  of  action.  It  therefore  becomes  necessary  that 
a  complaint  in  an  action  for  the  collection  of  a  tax  should 
show  upon  its  face  facts  sufficient  to  make  out  a  prima  facie 
case  of  valid  tax,  and  that  it  is  delinquent." 

In  Himmelman  r.  Danos,  supra,  35  Gal.  441,  the  com- 
plaint contained  an  averment  that  on  a  certain  day  the 
board  of  supervisors  of  San  Francisco  awarded  the  con- 
tract, under  which  the  street  work  in  question  was  done, 
to  plaintiff's  assignor,  but  none  of  the  precedent  steps 
which  the  statute  prescribed  were  generally  or  specifically 
alleged.  In  other  words,  the  facts  conferring  jurisdiction 
upon  the  board  were  not  stated.  The  complaint  was  silent 
as  to  the  notice  of  intention,  and  as  to  all  steps  which, 
following  the  course  of  the  statute,  precede  the  awarding 
of  the  contract.  The  several  steps,  however,  which  follow 
the  award  were  alleged  either  specifically  or  generally.  It 
was  held  that  the  complaint  failed  to  state  a  cause  of 
action,  and  in  this  connection  the  court,  pages  447-9,  per 
Sanderson,  J.,  said:  "If,  admitting  all  the  facts  stated  to 
be  true,  the  liability  of  the  defendant  does  not  follow  as  a 
legal  conclusion,  the  complaint  is  bad.  This  is  true  of 
every  complaint,  regardless  of  the  subject  matter.  The 


152    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

performance  of  all  conditions  which  are  precedent  to  the 
liability  of  the  defendant,  whether  founded  upon  a  con- 
tract or  a  statute,  must  be  alleged  in  some  form,  either 
general  or  special.  *  *  *  In  the  present  case  the 
liability  of  the  defendant  depends  upon  the  performance 
of  the  several  steps  enumerated  in  the  statute  by  the 
officers  of  the  city  government.  The  complaint  must  show 
by  either  special  or  general  averments  of  the  character 
permitted  by  our  statute  that  the  various  provisions  of  the 
statute  under  which  it  is  sought  to  charge  the  defendant 
were  complied  with,  for,  unless  they  have  been  complied 
with,  the  defendant  is  not  liable.  According  to  the  mode 
of  procedure  prescribed  by  the  statute,  the  award  of  the 
contract  is  not  the  first  step  to  be  taken  by  the  board  of 
supervisors,  yet  the  complaint  is  entirely  silent  as  to  all 
previous  steps.  In  relation  to  them  there  is  no  allegation 
either  special  or  general.  If  they  were  not  taken  the 
board  had  no  power  to  award  the  contract,  and  hence  no 
liability  was  cast  by  it  or  the  subsequent  steps,  however 
regular  they  may  have  been,  upon  the  defendant.  In  short, 
the  liability  of  the  defendant  cannot  be  affirmed  in  view  of 
the  facts  stated,  and  for  that  reason  the  complaint  is 
defective.  The  alleged  sufficiency  of  the  complaint  is 
grounded,  however,  by  the  respondent,  upon  a  provision 
found  in  the  thirteenth  section  of  the  statute  in  relation  to 
street  improvements  [Statutes  1863,  page  531,]  which  is  to 
the  effect  that  the  assessment,  warrant  and  diagram,  with 
the  affidavit  of  demand  and  non-payment,  shall  be  prima 
facie  evidence  of  defendant's  indebtedness,  and  of  the 
right  of  the  plaintiff  to  recover.  [Section  12  of  the  pres- 
ent act — the  Vrooman  act  of  March  18,  1885.]  Upon  that 
head  it  is  sufficient  to  say  that  the  provision  in  question 
does  not  establish  a  rule  of  pleading,  but  a  rule  of  evidence 
only."  In  this  same  case  it  is  said,  page  448,  that  in 
actions  upon  contracts  a  general  allegation  of  performance 
of  conditions  precedent  is  sufficient  under  our  statute,  but 
that  a  general  allegation  of  the  performance  of  conditions 
prescribed  by  a  statute  is  not  sufficient.  It  is  likewise 
stated'  that  the  same  rule  prevails  as  to  judgments  and 
determinations  of  courts,  tribunals,  boards  and  officers  of 
inferior  or  special  jurisdiction,  that,  in  favor  of  such,  the 
law  intends  nothing,  and  hence,  if  the  liability  of  the 
defendant  depends  upon  them,  the  facts  conferring  juris- 
diction must  be  specially  alleged  at  common  law.  But  our 
Code  of  Civil  Procedure  [section  456]  changes  the  common 
law  rule  that,  in  counting  upon  the  judgment  of  an 
inferior  tribunal,  it  is  necessary  to  state  the  facts  conferring 


MUST    ALLEGE 


jurisdiction,  and  expressly  provides  that  "in  pleading  a 
judgment,  or  other  determination  of  a  court,  officer,  or 
board,  it  is  not  necessary  to  state  the  facts  conferring  juris- 
diction, but  such  judgment  or  determination  may  be  stated 
to  have  been  duly  given  or  made.  If  such  allegation  be 
controverted,  the  party  pleading  must  establish  on  the 
trial  the  facts  conferring  jurisdiction."  Accordingly  it 
was  held  by  the  Supreme  Court  in  Pacific  Paving  Co.  v. 
Bolton,  97  Gal.  8,  that  an  order  of  the  council  ordering 
certain  work  to  be  done  is  the  judgment  or  determination 
of  a  court,  officer  or  board,  within  the  meaning  of  said  sec- 
tion 450  of  the  C.  C.  P.,  and  that,  therefore,  —  although  it  is 
necessary  that  the  council  should  pass  a  resolution  of  inten- 
tion, and  that  the  superintendent  of  streets  should  post  and 
publish  the  notice  required  by  section  3  of  the  act  before 
the  council  has  jurisdiction  to  order  the  work  to  be  done,  — 
nevertheless,  if  the  complaint  alleges  that  on  a  certain  day 
the  city  council,  "deeming  it  necessary,  duly  gave  and 
made  its  determination  to  order  the  work  done,"  there  is 
a  sufficient  averment  of  the  action  of  the  council,  and  the 
allegation  that  the  order  was  duly  given  is  under  the  special 
provision  of  said  section  456  of  the  C.  C.  P.,  equivalent  to 
the  statement  that  everything  necessary  to  be  done  to  give 
the  order  validity  had  been  done,  or,  rather  it  is  equivalent 
to  the  specific  allegation  of  each  of  the  steps  necessary  to 
give  this  order  validity. 

In  Bituminous  Lime  Rock  Pvg.  Co.  v.  Fulton,  33  Pac. 
Rep.  1117,  it  was  held  that  in  an  action  to  enforce  the  lien  of 
a  street  assessment  an  averment  "that  all  the  several  acts 
required  to  be  done  by  said  city  council,  said  superintend- 
ent of  streets  and  this  plaintiff,  have  been  duly  done,  made 
and  performed  by  it  and  them,  in  the  manner,  and  at  the 
times  and  in  the  form  required  by  law,"  is  sufficient  on 
general  demurrer. 

Therefore,  in  an  action  upon  a  street  assessment,  the 
pleader  must  (1.)  either  follow  the  rule  of  the  common  law 
and  allege  specifically  all  the  facts  necessary  to  give  the 
council  jurisdiction  to  order  the  work  to  be  done,  allege 
specifically  all  the  steps  preceding  the  award  of  the  con- 
tract, and  likewise  allege  specifically  all  the  steps  following 
the  award  up  to  the  final  step  necessary  to  vest  a  valid 
right  of  action  in  the  contractor  or  his  assigns,  or  (#.).he 
may  avail  himself  of  the  provisions  of  section  456  of  the 
Code  of  Civil  Procedure,  and,  as  to  all  judgments  or  deter- 
minations of  the  council  or  of  an  officer,  may  allege  gener- 
ally that  such  judgment  or  determination  was  duly  given 
or  made,  and  this  allegation,  as  to  such  judgment  or  deter- 


154    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

ruination,  will  be  equivalent  to  an  allegation  of  the  several 
facts  and  steps  necessary  to  confer  jurisdiction  to  give  or 
make  the  judgment  or  determination.  When  the  pleader 
adopts  the  course  permitted  by  section  456  of  the  Code  of 
Civil  Procedure,  he  must  allege  generally  the  facts  neces- 
sary to  confer  jurisdiction  to  give  or  make  such  judgment 
or  determination  by  alleging  generally  such  judgment 
or  determination, — with  the  allegation  that  it  \vas  duly 
given  or  made, — and  must  also  specifically  allege  every 
other  necessary  prerequisite  to  the  existence  of  a  valid  right 
of  action  which  does  not  enter  into  or  become  a  part  of  the 
facts  necessary  to  confer  jurisdiction  to  give  or  make  a 
judgment  or  determination.  That  is  to  say,  while  the 
pleader  need  not  allege  specifically  the  passage  of  the 
resolution  of  intention,  its  publication,  etc.,  and  all  the  other 
steps  necessary  to  confer  jurisdiction  upon  the  council  to 
order  the  work  to  be  done,  but  may  allege  these  facts  gener- 
alty  by  the  equivalent  allegation  that  the  order  to  do  the 
work  was  duly  given  or  made  by  the  council,  still,  he 
must,  for  example,  allege  specifically  that  the  superinten- 
dent of  streets  recorded  the  return  in  the  margin  of  the 
record  of  the  warrant  and  assessment,  as  this  is  one  of  the 
acts  necessary  to  the  existence  of  a  valid  right  of  action, 
and  yet  is  not  an  act  conferring  jurisdiction  upon  the  coun- 
cil or  any  officer  to  give  or  make  any  judgment  or  deter- 
mination. [See  notes  to  section  10  of  the  act  for  a 
statement  of  the  necessary  prerequisites  to  the  existence  of 
a  valid  right  of  action  in  the  contractor.] 

(b.)     Some  Special  Rules  Applicable  to  Complaints. 

1.  It  is  necessary  to  the  validity  of  the  proceedings  that 
the  council  should  order  the  notice  of  the  award  to  be  pub- 
lished; a  publication  without  such  order  is  void.  [Donnelly  v. 
Tillrnan,  47  Cal.  40.]  Therefore  it  is  necessary  that  the  com- 
plaint should  show  that  notice  of  the  award  of  the  contract  was 
published  by  order  of  the  council.  [Hirnmelmann  v.  Town- 
send,  49  Cal.  150;  Contra,  Himmelmann  v.  Haskell,  46  Cal. 
67;  Dyer  v.  North,  44  Cal.  157.] 

#.  The  complaint  must  allege  that  the  defendants  are 
owners  0r  have  an  interest  in  the  land  sought  to  be 
charged.  [San  Francisco  v.  Doe,  48  Cal.  560.] 

3.  Two  causes  of  action  for  enforcing  liens  for  two  street 
assessments,  on  the  same  lot,  at  different  times  and  on 
different  contracts,  and  for  improving  the  same  street,  can 
not  be  joined  in  the  same  suit.  In  such  case  the  claims  of 
the  plaintiff  do  not  "arise  out  of  contracts"  within  the 
meaning  of  section  427  of  the  Code  of  Civil  Procedure. 
The  contracts  there  spoken  of  are  contracts  to  which  the 


COMPLAINTS,  SOME    SPECIAL    PaiLES        Si^SSS^^       155 

person  sued  was  a  party,  an'd  it,  is  settled  that  the  owners 
of  property  adjacent  to  a  street  improvement  are  not  in  any 
sense  parties  to  the  contract  between  the  contractor  arid  the 
superintendent  of  streets.  The  action  is  an  action  to 
recover  the  amount  of  a  tax.  The  thing  sued  for  is  not  the 
contract  price,  or  a  part  of  it,  but  the  tax  specified  in  the 
assessment.  [Dyer  v.  Barstow,  50  Cal.  652.] 

4.  The  complaint  must  allege  that  the  assessment  was 
made  as  prescribed  by  the  statute,  and  a  complaint  alleging 
that  the  assessment  was  made  "upon  the  property  benefited 
by  said  street  improvement"  is  not  sufficient,  as  it  does  not 
show  a  compliance  with  the    statutory    provision  that  the 
expenses  incurred  "shall  be  assessed  upon  the  lots  and  lands 
fronting  thereon,  each  lot  or  portion  of  a  lot  being  separ- 
ately   assessed   in    proportion  to  the  frontage."     [Miller  v. 
Mayo,  88  Cal.  568.] 

5.  The  complaint  must  show  that  the  contract  was  made 
with    the    plaintiff  or    his    assignor.     [Bays  v.  Lapidge,  52 
Cal.  481.] 

6.  The    complaint    must    show    that   the    contract   was 
entered   into    and  executed  within  the  time  prescribed  by 
the  statute,  viz.,  within   15    days    after    the    posting  of  the 
notice  of  the  award,  but  not  earlier  than  10  days  after  the 
first    posting    and    publication  of  said    notice  of  award,  as 
provided    by    section    5    of  the  act.     [Ferine  v.    Forbush, 
97    Cal.    305;    Manning    v.    Den,    90    Cal.  610;    Burke    v. 
Turney,  54  Cal.  486.] 

7.  The  complaint  must  show  that  the  contract  fixed  the 
time  for  the  commencement    and    completion  of  the  work 
as  provided  by  section  6  of  the  act.     [Libbey  v.    Elsworth, 
07  Cal.  316;  Washburn  v.  Lyons,  97  Cal.  314] 

IV.  Answer]  Defenses.  Want  of  jurisdictional  facts  not 
curable  by  the  council  on  appeal  may  be  shown  in 
defense.  [Emery  v.  Bradford,  29  Cal.  87.]  An  allegation 
in  the  answer  that  the  council  had  no  authority  or  juris- 
diction to  order  the  work  done,  is  a  mere  conclusion  of  law, 
and  a  finding  responsive  to  such  allegation  is  insufficient.  The 
facts  should  be  alleged  and  specifically  found.  [Spaulding 
v.  Wesson,  84  Cal.  141.]  But  the  facts  necessary  to  confer 
jurisdiction  upon  the  council  to  order  the  work  to  be  done, 
and  the  facts  necessary  to  the  existence  of  a  valid  right  of 
action  in  the  plaintiff,  must  be  alleged  in  the  complaint, 
either  generally  or  specifically,  [Himmelman  v.  Danos,  35  Cal. 
441,  cited  supra.  See  supra,  page  151,  etseq.]  and  the  defend- 
ant may  deny  any  material  allegation  of  the  complaint: 
And  the  fact  that  a  street  improvement  act,  such  as  the  San 
Francisco  street  work  act  of  1870,  prohibits  all  but  certain 


156          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

defenses,  does  not  prevent  the  defendant  from  denying  any 
material  averment  of  the  complaint.  Such  provisions  of 
the  statute  are  merely  intended  to  restrict  the  affirmative 
defenses  to  those  enumerated.  [People  v.  Eaton,  46  Cal. 
100.] 

The  lot  owner  may  show  and  rely  on  as  a  defense  any 
substantial  error  in  the  proceedings  which  could  not  have 
been  remedied  by  an  appeal  to  the  council.  [City  of  Stock- 
ton v.  Creanor,  45  Cal.  644.] 

A  promise  to  pay  can  not  be  implied  from  the  fact  that 
the  defendant,  a  property  owner,  saw  the  work  done  without 
objection,  and  even  made  suggestions  to  the  workman  as  to 
the  proper  way  of  doing  it.  [Nagle  v.  McMurray,  84  Cal. 
539.] 

One  made  a  party  defendant  by  reason  of  some  claim  or 
interest,  and  not  as  owner,  must  show  his  claim  or  interest 
before  he  can  be  heard  to  defend  upon  the  merits.  [Him- 
melmann  v.  Spanagel,  39  Cal.  389.]  And  allegations  of  the 
complaint  are  not  proof  of  such  interest.  [Id.]  A  fraudu- 
lent side  agreement  between  the  contractor  and  some  of  the 
property  owners  can  not  be  set  up  in  defense  unless  the 
statute,  like  the  San  Francisco  street  work  act  of  1872, 
expressly  allows  fraud  to  be  set  up  in  defense  to  the  action. 
[Nolan  v.  Reese,  32  Cal.  486;  Chambers  v.  Satterlee,  40  Cal. 
513;  Himmelmann  v.  Hoadley,  44  Cal.  214,227;  Brady  v. 
Bartlett,  56  Cal.  350.  See  notes  under  section  11,  supra, 
page  131  et  seq.]  "That  the  work  was  more  than  half  done 
under  a  private  contract,  to  which  defendant  was  not  a 
party,  before  any  steps  were  taken  to  let  a  public  contract, 
and  that  the  plaintiff  went  on  and  completed  the  work,  and 
after  its  completion  the  party  who  had  taken  the  public 
contract,  assigned  it  to  plaintiff,  does  not  constitute  fraud 
per  se."  [Conniff  v.  Kahn,  51  Cal.  284.]  If  the  superin- 
tendent enters  into  the  contract  before  the  expiration  of  the 
time  provided  by  section  5  of  the  act,  within  which  the 
property  owners  may  elect  to  take  the  contract,  this  premature 
action  is  one  that  affects  the  jurisdiction  or  power  of  the 
superintendent,  and  the  contract  is  void;  and  a  failure  to 
appeal  does  not  validate  it.  The  defendant  may,  therefore, 
rely  upon  this  premature  action  of  the  superintendent  as  a 
defense,  and  as  the  complaint  must  show  that  the  contract 
was  made  in  the  proper  time,  this  defense  is  not  an  affirma- 
tive defense  of  new  matter,  and  consequently  could  be 
availed  of,  even  if  the  statute  prohibited  all  but  certain 
affirmative  defenses, — as  did  the  San  Francisco  street  work 
act  of  1870.  [Burke  v.  Turney,  54  Cal.  486;  see  also  Ferine 
v.  Forbush,  97  Cal.  305:  Mannings  Den,  90  Cal.  610.] 


ANSWER DEFENSES EVIDENCE  SSJf'i?l«^ended       157 


March  14.  1889. 


When  a  complaint  is  amended  by  striking  out  the  names 
of  certain  defendants,  the  answer  may  be  amended  by  aver- 
ring that  such  defendants  were  owners  of  the  lot.  [Harney 
v.  Appelgate,  57  Cal.  205.]  To  sustain  the  action  it  is  suffi- 
cient to  show  that  the  defendants  are  owners  in  fee  of  the 
land,  without  regard  to  the  amount  of  interest  claimed  by 
any  defendant  in  his  answer,  and  if  the  court  finds  him  to 
be  a  part  owner  of  the  land,  this  is  sufficient  without  find- 
ing his  interest  to  be  such  as  is  alleged  by  him  in  his  answer. 
[Whiting  v.  Townsend,  57  Cal.  515.]  The  defendant  may  set 
up  in  his  answer  that  the  assessment  included  a  sum  for  work 
not  authorized  by  the  resolution  of  intention,  or  the  award, 
and  that  the  demand  was  for  the  total  sum,  including  the 
part  not  legally  a  charge  against  the  land.  [Donnelly  v. 
Howard,  60  Cal.  291.]  If  defendants  in  their  original  answer 
admit  their  ownership,  and  afterwards  ask  leave  to  amend 
by  denying  ownership,  it  is  not  an  abuse  of  discretion  for 
the  court  to  deny  the  motion  to  amend.  [Harney  v.  Corco- 
ran, GO  Cal.  314.]  Denial  by  defendant  of  his  own  owner- 
ship, for  want  of  information  or  belief,  will  raise  an  issue  if 
no  motion  is  made  to  strike  out.  [Harney  v.  McLeran,  66 
Cal.  35.]  And  if  plaintiff  in  such  case  introduces  no  evi- 
dence in  support  of  his  allegation  of  defendant's  ownership, 
a  non-suit  should  be  granted.  \Id.] 

V.  Evidence.  The  plaintiff  must  prove  every  material 
averment  alleged  in  the  complaint  and  denied  by  the 
answer, — as,  that  "  notice  of  the  award  of  the  contract  was 
published  in  a  newspaper,  pursuant  to  the  order  of 
the  board  of  supervisors."  [Shepard  v.  Colton,  44  Cal.  628; 
Donnelly  v.  Tillman,  47  Cal.  40.J  Also  the  fact  that  "an 
assessment  for  the  work  was  made  and  issued."  [People  v. 
Eaton,  46  Cal.  100.]  Also  that  "  defendant  owns  the  lot." 
[City  of  Santa  Barbara  v.  Huse,  51  Cal.  217;  Harney  v.  Mc- 
Leran, 66  Cal.  34.] 

Section  12  of  the  act  provides  that  "the  said  warrant, 
assessment,  certificate  and  diagram,  with  the  affidavit  of 
demand  and  non-payment,  shall  be  held  prima  facie  evidence 
of  the  regularity  and  correctness  of  the  assessment,  and  of 
the  prior  proceedings  and  acts  of  the  superintendent  of 
streets  and  city  council,  upon  which  said  warrant,  assess- 
ment and  diagram  are  based,  and  like  evidence  of  the  right 
of  the  plaintiff  to  recover  in  the  action." 

Under  this  provision  of  the  statute,  the  warrant,  assess- 
ment, certificate  and  diagram,  with  the  affidavit  of  demand 
and  non-payment,  are  prima  facie  evidence  that  everything 
has  been  done  which  may  be  necessary  to  entitle  the  plaintiff 
to  recover  in  the  action,— prima  facie  evidence,  for  example, 


158    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

that  a  valid  contract  was  entered  into  for  the  street  improve- 
ment for  which  the  assessment  was  made.  But,  it  is  only 
made  prima  facie  evidence,  and  it  is  competent  for  the 
defendant,  if  he  denies  any  material  allegation  of  the  com- 
plaint, to  overcome  the  prima  facie  evidence  resulting  from 
the  production  of  said  documents.  Thus,  if  the  defendant 
denies  the  contract,  he  may  overcome  the  evidence  of  the 
contract  which  the  production  of  said  documents  affords. 
Accordingly  it  was  held  in  Manning  v.  Den,  90  Cal.  610,  that 
documentary  proof  from  the  office  of  the  superintendent  of 
streets,  showing  that  the  original  contract  on  file  therein 
was  prepared  for  execution  by  both  parties,  and  was  not 
signed  by  the  superintendent,  and  that  the  bond  on  tile  was 
in  blank,  without  specifying  the  names  of  the  obligors  or 
the  penalty,  or  any  contract  for  specific  work,  and  without 
date,  is  admissible  for  the  defendant,  as  tending  to  show 
that  110  contract  for  doing  the  work  had  been  entered  into 
by  the  superintendent.  While  the  defendant,  if  he  has 
denied  any  of  the  material  allegations  of  the  complaint,  may, 
by  the  introduction  of  evidence  to  the  contrary,  overcome 
plaintiff's  prima  facie  case  resulting  from  the  introduction 
of  the  warrant,  assessment,  diagram,  etc.,  still,  if  he  does  not 
introduce  any  evidence,  the  court  must  find  all  the  facts  in 
plaintiff's  favor,  if  he  has  introduced  the  warrant,  assess- 
ment, diagram,  etc.,  as  these  documents  are  made  prima 
facie  evidence  of  his  right  to  recover.  [Jennings  i?.Le  Roy, 
63  Cal.  397.] 

If  it  be  a  fatal  error  to  include  in  the  assessment  any 
portion  of  the  expense  of  improving  that  portion  of  the 
street  occupied  by  the  tracks  of  a  railroad  company,  and 
which  is  made  the  duty  of  the  railroad  company  to  improve, 
the  burden  of  proof  is  upon  the  property  owner  who  con- 
tests the  validity  of  the  assessment  to  show  that  the  expense 
of  improving  such  portion  of  the  street  was  included  in  the 
assessment,  as  the  production  by  the  plaintiff  of  the  war- 
rant, assessment,  etc.,  makes  out  a  prima  facie  case.  [Mc- 
Verry  v.  Boyd,  89  Cal.  305.] 

The  warrant,  assessment,  etc.,  are  prima  facie  evidence 
that  the  work  was  done  to  the  satisfaction  of  the  street 
superintendent.  [Jennings  v.  LeBreton,  80  Cal.  8.]  In 
that  case  it  was  held  that  under  the  act  under  which  the 
work  in  that  case  was  done,  the  superintendent,  without 
personal  inspection  might  approve  the  work  upon  the  cer- 
tificates of  the  city  surveyor  or  city  engineer  that  the  work 
has  been  duly  performed,  and  proof  of  lack  of  personal 
inspection  by  him  does  not  overcome  the  proof  of  accept- 
ance from  those  certificates  showing  that  the  work  was 


EVIDENCE— GRADE— PAROL  $&££^****       159 

completed  according  to  contract,  taken  in  connection  with 
the  personal  making  and  signing  of  the  assessment,  dia- 
gram and  warrant  by  the  superintendent. 

Under  the  San  Francisco  street  work  act  of  1872,  a 
block  of  a  street  might  be  graded,  without  a  petition 
therefore  by  the  property  owners,  whenever  two  or 
more  adjacent  blocks  had  been  graded  on  each  side 
of  the  ungraded  block.  In  Fanning  v.  Bohme,  76  Cal. 
149,  the  work  was  done  under  this  act.  The  grad- 
ing of  a  certain  block  was  ordered  to  be  done,  upon 
the  determination  by  the  city  officials  that  an  adja- 
cent block  had  been  graded  about  twenty  years  previously. 
The  defendant  set  up  that  such  adjacent  block  never  had, 
in  fact,  been  graded.  The  evidence  showed  that  the  pres- 
ent grade  of  such  adjacent  block  varied  in  places  from  the 
oflicial  grade  from  a  few  inches  to  a  foot  and  three-quar- 
ters. Held,  that  the  evidence  was  insufficient  to  overcome 
the  prima  facie  presumption  that  all  proceedings  were 
regular,  including  the  proper  grading  of  the  block  twenty 
yeara  previously.  [See  also  Ede  v.  Knight,  93  Cal.  159; 
Fanning  v.  Leviston,  (J:>  Cal.  186;  Himmelman  v.  Carpentier, 
47  Cal.  43;  Borland  v.  McGlynn,  47  Gal.  47;  Macadamizing 
Co.  v.  Williams,  70  Cal.  534;  City  of  Stockton  v.  Creanor, 

-ir,  Cal.  <M:;.] 

Parol  evidence  is  admissible  to  prove  that  the  record 
made  by  the  superintendent  of  streets  of  the  completion  of 
a  contract  was  made  after  the  assessment  issued,  although 
it  is  dated  before  the  assessment  issued.  Such  evidence 
does  not  contradict  the  record.  It  only  goes  to  prove  when 
tho  record  was  made.  [Gately  v.  Irvine,  51  Cal.  172.] 

The  records  of  the  council  concerning  the  publication 
of  notices  of  the  award  of  the  contract  can  not  be  contra- 
dict od  by  parol  evidence.  So  that,  if  those  records  show 
that  the  council  ordered  the  clerk  to  advertise  the  awards, 
they  cannot  be  contradicted  by  parol.  [Borland  v. 
McGlynn,  47  Cal.  47.] 

Parol  evidence  is,  however,  admissible  to  show  that  a 
certain  document,  offered  by  the  plaintiff  as  the  record  of 
the  council  ordering  the  work  to  be  done,  was  not  in  fact  a 
record  of  the  council,  and  that  the  true  record  did  not 
authorize  the  work.  [Dyer  v.  Brogan,  70  Cal.  136.]  Parol 
evidence  is  always  admissible  to  prove  which  of  two  puta- 
tive records  is  the  true  one,  as  such  evidence  does  not  con- 
tradict the  record  but  establishes  it.  [Id.]  The  defendant 
must  be  proved  to  be  the  owner  of  the  lot,  if  he  denies  it. 
[City  of  Santa  Barbara  v.  Huse,  51  Cal.  217;  Harney  v. 
McLaren,  66  Cal.  34;  Robinson  v.  Merrill,  87  Cal.  11.] 


100    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

The  affidavit  of  demand  endorsed  upon  the  contractor's 
return  is  competent  evidence  to  prove  the  demand.  [Dyer 
v.  Brogan,  57  Gal.  234;  Himmelmann  v.  Hoadley,  44  Cal.  214; 
Deady  v.  Townsend,  57  Cal.  298;  Ede  v.  Knight,  93  Cal. 
160;]  and  it  is  also  prima  facie  evidence  of  the  agency  of 
the  person  making  a  demand  on  behalf  of  the  contractor, 
if  the  affiant  in  his  affidavit  states  that  he  was  such  agent. 
[Whiting  v.  Townsend,  57  Cal.  515;  see  Himmelmann  v. 
Woolrich,  45  Cal.  249.]  In  fact  the  statute  [section  12] 
expressly  states  that  the  affidavit  of  demand  and  non-pay- 
ment, together  with  the  warrant,  assessment,  etc.,  shall  be 
prima  facie  evidence  "of  the  right  of  the  plaintiff  to  recover 
in  the  action." 

If  it  be  proved  that  a  petition  for  grading  has  been  filed 
in  the  office  of  the  clerk  of  the  city  council,  and  that  it  has 
been,  lost  and  cannot  be  found,  secondary  evidence  of  its 
contents  is  admissible.  But  while  secondary  evidence  of 
the  contents  of  the  petition  is  in  such  case  admissible,  a 
writing  copied  by  a  short  hand  reporter  from  his  notes  of 
the  evidence  taken  in  another  case  in  which  a  certified  copy 
of  such  petition  was  read  in  evidence  is  not  admissible,  even 
though  the  case  be  one  in  which  secondary  evidence  of  the 
contents  of  the  original  petition  is  admissible.  A  copy  of  a 
certified  copy  of  an  original  instrument  which  has  been  lost, 
is  not  competent  evidence  and  is  not  admissible  in  any  case, 
to  prove  the  contents  of  the  original,  unless  shown  to  have 
been  compared  with  the  original.  [Dyer  V.Hudson,  65  Cal. 
372.] 

As  to  what  constitutes  evidence  of  the  grade  of  a  street, 
see  Gafney  v.  San  Francisco.  72  Cal.  146;  Dorland  v.  Berg- 
son,  78  Cal.  637;  City  of  Napa  v.  Easterby,  61  Cal.  510; 
Chambers  v.  Satterlee,  40  Cal.  497;  Himmelmann  v.  Hoadley, 
44  Cal.  213;  Williams  v.  Savings  &  L.  Soc.,  97  Cal. 
122.  In  Gafney  v.  San  Francisco,  supra,  it  was  held 
that  a  statute  fixing  the  grades  of  certain  streets  in  the  city 
and  county  of  San  Francisco  at  their  points  of  intersection, 
fixes  the  grade  at  all  intermediate  points  by  connecting  the 
named  points  by  a  straight  line.  But  the  points  of  inter- 
section must  not  be  more  than  one  block  apart.  Thus  in 
Dorland  v.  Bergson,  supra,  it  was  held  that  the  establish- 
ment of  the  official  grade  of  two  crossings  of  the  same 
street,  which  are  two  blocks  apart,  does  not  establish  the 
official  grade  of  the  intervening  portion  of  the  street. 

VI.  Decree.  The  statute  [section  12]  expressly  provides 
that  "the  court  in  which  said  suit  shall  be  commenced  shall 
have  power  to  adjudge  and  decree  a  lien  against  the  premi- 
ses-assessed, and  to  order  such  premises  to  be  sold  on  exe- 


DECREE PERSONAL    JUDGMENT    VOID 

cution,  as  in  other  cases  of  the  sale  of  real  estate  by  the  pro- 
cess of  said  courts."  The  statute  does  not  provide  for  nor 
does  it  contemplate  any  personal  judgment  against  the 
defendant.  The  expense  of  the  improvement  is  a  charge 
upon  the  property  supposed  to  be  benefited,  i.  e.,  the  prop- 
erty subject  to  assessment  under  the  act,  and  is  not  a  charge 
against  the  owner  personally.  It  was  held  at  an  early  day 
that  a  statute  making  the  owner  personally  liable  for  a  defi- 
ciency was,  in  this  respect,  unconstitutional  and  void.  [Tay- 
lor i>/Palmer,  31  Cal.  241;  Baudry  v.  Valdez,  32  Cal.  270; 
Guerin  v.  Reese,  33  Cal.  292;  Gafney  v.  Donohue,  36  Cal'. 
104;  Coniff  v.  Hastings,  36  Cal.  292;  Himmelinami  v. 
Steiner,  38  Cal.  176;  Randolph  v.  Bayue,  44  Cal.  366.]  "In 
furtherance  of  this  end  [i.  e.,  that  the  expense  of  the  improve- 
ment is  a  charge  upon  the  property  assessed,  and  not  a  charge 
upon  the  owner  personally]  the  identity  of  the  lot  assessed, 
and  not  the  person  who  may  be  the  owner,  is  made  the 
essential  requirement  of  the  statute, — the  first  must  be  spe- 
cifically described,  while  the  latter  may  be  designated  as 
'unknown.'  '  [Gillis  v.  Cleveland,  87  Cal.  217.] 

If  a  judgment  provide  for  a  personal  judgment  against 
the  defendant  for  any  deficiency  that  may  remain  after  a 
sale  of  the  lot  assessed,  it  is  unauthorized  and  erroneous. 
[Manning  v.  Den,  90  Cal.  610,  decided  under  the  present 
street  improvement  act — the  Vrooman  act  of  March  18, 
1885.] 

If  a  lot  is  assessed  to  one  person,  the  contractor  can  not 
recover  judgment  against  another.  [Blatner  v.  Davis,  32 
Cal.  328.] 

A  decree  enforcing  the  lien  cannot  be  entered  until  all 
the  owners  are  made  parties  and  served  with  process. 
[Hancock  v.  Bowman,  49  Cal.  413;  Diggius  v.  Reay,  54  Cal. 
525.] 

When  two  or  more  lots  are  separately  assessed  each  lot 
is  chargeable  only  with  the  amount  assessed  upon  it,  and 
the  judgment  should  state  the  amount  for  which  each  lot 
is  liable,  and  should  order  a  sale  of  each  lot,  or  so  much 
thereof  as  may  be  necessary  to  satisfy  the  amount  assessed 
against  it,  and  costs.  [Brady  v.  Kelly,  52  Cal.  371.]  The 
liability  of  each  lot  is  independent  of  any  other  lot,  and 
constitutes  a  separate  demand,  upon  which  a  separate 
cause  of  action  may  be  based.  And,  therefore,  a  recovery 
upon  lot  "A"  in  a  former  action,  although  between  the  same 
parties,  is  a  different  cause  of  action,  and,  consequently, 
not  a  good  plea  in  bar  of  an  action  upon  lot  "B."  [Gillis 
i'.  Cleveland,  87  Cal.  214,  218.] 

When  several  defendants  are  owners  of  a  lot,  judgment 


1G2    STREET  WORK  LAW  -  STREET  IMPROVEMENT  ACT 

can  not  be  ordered  against  only  one  of  the  defendants. 
[Clark  v.  Porter,  53  Cal.  409.] 

When  the  court  finds  generally  that  the  council  had  not 
acquired  jurisdiction  to  order  the  work,  but  also  finds  par- 
ticular facts  sufficient  to  show  that  it  did  have  jurisdiction, 
judgment  should  be  rendered  for  plaintiff.  [Dyer  v.  Chase, 
57  Cal.  284.] 

Judgment  may  be  enforced  against  the  property  assessed 
even  though  it  be  defendant's  homestead.  [Ferine  v.  For- 
bush,  97  Cal.  305.] 

In  Kreling  v.  Muller,  86  Cal.  465,  it  was  held  that  under 
the  Vrooman  act  of  March  18,  1885,  —  .prior  to  the  amend- 
ment of  sections  3  and  7  by  the  act  of  March  31,  1891,  —  :i 
judgment  charging  upon  a  lot  a  sum  greater  than  one-half 
the  value  of  such  lot,  as  borne  upon  the  preceding  assess- 
ment roll  for  municipal  purposes,  is  erroneous,  and  that  it 
makes  no  difference  that  the  work  called  for  by  the  reso- 
lution and  order  is  split  up  into  separate  contracts  and 
assessments.  But  this  decision  was  based  upon  provisions 
of  sections  3  and  7  of  the  act  as  it  originally  stood,  by 
which  it  was  provided  that  a  lot  could  not  be  charged  for 
work  called  for  by  one  resolution  of  intention  and  order  in 
a  greater  sum  than  one-half  the  value  of  such  lot  as  it  was 
last  assessed  for  municipal  taxation.  These  provisions 
of  sections  3  and  7  were  eliminated  bv  the  amendment  of 
March  14,  1889.  [Statutes  1889,  pages"  158-160,  163.]  And 
in  this  respect  the  amendment  of  March  31,  1891,  [statutes 
1891,  pages  196-199,  201,]  follows  the  amendment  of  1889; 
so  that,  as  sections  3  and  7  now  stand,  i.  e.,  as  amended  by 
the  act  of  March  31,  1891,  —  the  last  amendment  of  these 
sections  —  no  part  of  the  property  assessed  is  exempt  from 
the  amount  of  the  assessment,  but  the  lot  is  chargeable 
with  the  whole  amount  assessed  against  it  regardless  of  its 
value,  even  though  the  amount  assessed  may  far  exceed 
the  value  of  the  lot. 


SECTION  12>£.  The  city  council,  instead  of  waiting  until  the  completion 
of  the  improvement,  may,  in  its  discretion,  and  not  otherwise,  upon  the 
completion  of  two  blocks  or  more  of  any  improvement,  order  the  street 
superintendent  to  make  an  assessment  for  the  proportionate  amount  of 
the  contract  completed,  and  thereupon  proceedings  and  rights  of  collection 
of  such  proportionate  amount  shall  be  had  as  in  sections  eight,  nine,  ten, 
eleven  and  twelve  of  the  act  of  which  this  is  amendatory  is  provided. 
[Amendment  approved  March  14,  1889,  statutes  1889,  page  169.} 

[Section  12%  was  added  to  the  act  in  1889  by  the  act  of  March  14,  1889, 
statutes  1889,  page  169.] 

SECTION  13.  When  any  portion  of  any  street,  avenue,  lane,  alley,  court 
or  place  in  said  city  improved,  or  any  sidewalk  constructed  thereon  shall 


SECTION    THIRTEEN    OF    THE    ACT       Mare^?  f^9en<led       163 


be  out  of  repair,  or  needing  reconstruction,  and  in  condition  to  endanger 
persons  or  property  passing  thereon,  or  in  condition  to  interfere  with  the 
public  convenience  in  the  use  thereof,  it  shall  be  the  duty  of  said  superin- 
tendent of  streets  to  require,  by  notice  in  writing,  to  be  delivered  to  them 
or  their  agents  personally,  or  left  on  the  premises,  the  owners  or  occupants 
of  lots  or  portions  of  lots  fronting  on  said  portion  of  said  street,  avenue, 
alley,  lane,  court,  or  place,  or  of  said  portion  of  said  sidewalk  so  out  of 
repair  or  needing  reconstruction  as  aforesaid,  to  repair  or  reconstruct,  or 
to  do  both,  forthwith,  said  portion  of  said  street,  avenue,  lane,  alley, 
court,  or  place,  to  the  center  line  of  said  street  in  front  of  the  property  of 
which  he  is  the  owner,  or  tenant,  or  occupant,  and  said  superintendent  of 
streets  shall  particularly  specify  in  said  notice  what  work  is  required  to  be 
done,  and  how  the  same  is  to  be  done,  and  what  material  shall  be  used  in 
s:ii<l  riM>:iirs,  or  reconstructions,  or  both.  If  said  repairs  or  reconstructions, 
or  both,  be  not  commenced  within  three  days  after  notice  given  as  afore- 
said, and  diligently  and  without  interruption  prosecuted  to  completion, 
the  said  superintendent  of  streets  may,  under  authority  from  said  city 
council,  make  such  repairs,  reconstruction,  or  both,  or  enter  into  a  contract 
with  any  suitable  person,  at  the  expense  of  the  owner,  tenant  or  occupant, 
after  the  specification  for  the  doing  of  said  work  shall  have  been  conspic- 
uously posted  by  him  in  his  office  for  two  days,  inviting  bids  for  the  doing 
of  said  work,  which  bids  shall  lie  delivered  to  him  at  his  office  on  or  before 
the  second  day'  of  said  posting,  and  opened  by  him  on  the  next  day  follow- 
intr  the  expiration  of  sa'nl  two  days  of  posting,  and  the  contract  by  him  be 
awarded  to  the  lowest  bidder,  if  such  lowest  bid,  in  the  judgment  of  said 
street  superintendent,  shall  be  reasonable.  All  of  said  bids  shall  be  pre- 
served in  his  oiiice  and  open  at  all  times  after  the  letting  of  the  contract 
to  the  inspection  of  all  persons,  and  such  owner,  tenant  or  occupant  shall 
be  liable  to  pay  said  contract  price.  Such  work  shall  be  commenced 
within  twenty-lour  hours  after  the  contract  shall  have  been  signed,  and 
completed  without  delay  to  the  satisfaction  of  said  street  superintendent. 
Upon  the  completion  of  said  repairs,  or  reconstruction,  or  both,  by  said 
contractors  as  aforesaid  to  the  satisfaction  of  said  superintendent  of  streets, 
said  superintendent  of  streets  shall  make  and  deliver  to  said  contractor  a 
certificate  to  the  effect  that  said  repairs,  or  reconstruction,  or  both,  have 
been  properly  made  by  said  contractor  to  the  grade,  and  that  the  charges 
for  the  same  are  reasonable  and  just,  and  that  he,  said  superintendent, 
has  accepted  the  same.  [Amendment  approved  March  14,  1889,  statutes  1889, 
p.  169.} 

[Section  13  was  amended  in  1889  by  act  of  March  14,  1889,  statutes  1889, 
p.  169.] 

I.  Scope  of  SectionThirteen.  Sections  13,  14  and  15  are 
intimately  correlated.  Together  they  provide  the  machin- 
ery for  repairing  and  reconstructing  to  the  center  line,  at 
the  expense  of  the  owner  of  the  abutting  property,  any 
portion  of  any  unaccepted  street/  avenue,  lane,  alley,  court 
>r  place  improved,  or  any  sidewalk  out  of  repair  and  need- 
ing reconstruction.  The  superintendent  of  streets  may 
himself  do  the  repairing  or  reconstructing  or  may  let  a 
contract  therefore  to  some  suitable  person,  at  the  expense 


o 


164    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

of  the  owner,  tenant  or  occupant  of  the  adjoining  property, 
if  the  owner,  tenant  or  occupant  does  not  himself  do  the 
work  of  repairing  or  reconstructing  after  being  notified  so 
to  do  in  writing,  provided,  that  the  street  has  not  been 
"accepted"  by  the  city  council,  by  ordinance,  as  provided 
for  by  section  20  of  the  act,  as  by  said  section  20,  after 
such  acceptance,  the  street  must  thereafter  be  kept  in  repair 
and  improved  by  the  municipality,  the  expenses  being  paid 
out  of  a  fund  to  be  provided  by  the  council  for  that  pur- 
pose. And  this  provision  of  section  20  applies  to  the  side- 
walk as  well  as  to  the  roadway.  [Bonnet  v.  San  Francisco, 
65  Gal.  230;  see  also  section  25  of  the  act.] 

II.  Prerequisites  to  Imposition  of  Cost  of  Repair  upon  the 
Lot  Owner.  There  are  several  prerequisites  to  the  imposi- 
tion of  this  expense  upon  the  abutting  property  owner, 
namely:  (1.)  The  property  owner  can  only  be  required  to 
"repair"  or  "reconstruct"  the  street,  alley,  etc.,  or  sidewalk. 
The  term  "repair"  means  to  restore  to  a  sound  or  good 
state,  after  decay,  injury,  delapidation  or  partial  destruc- 
tion. It  does  not  mean  to  make  a  new  thing,  but  to  refit, 
make  good  or  restore  an  existing  thing.  The  repairs 
spoken  of  in  street  laws  have  been  held  to  include  the  sub- 
stitution of  new  curb-stones  arid  gutters  for  old  ones, 
[People  v.  Brooklyn,  21  Barb.  (N.  Y.)  484;]  but  does  not 
include  the  substitution  of  a  new  and  different  kind  of  pave- 
ment from  that  already  existing.  [In  re  Fulton  Street,  29 
How.  Pr.  (N.  Y.)  429;  Blount  v.  Janesville,  31  Wis.  648.] 
"By  the  term  'repairs'  is  meant  whatever  is  necessary  to 
keep  the  road  in  a  proper  condition  for  the  traffic,  having 
regard  for  the  character  and  original  manufacture  of  the 
road,  but  nothing  further;  it  does  not  include  converting  a 
macadamized  road  into  a  paved  road."  [Leek,  etc.,  Commis- 
sioners v.  Justices  of  Stafford,  20  Q.  B.  Div.  797.]  It  means, 
in  short,  restoration  to  orginal  condition.  (2.)  The  street, 
alley,  etc.,  or  sidewalk  must  not  only  be  out  of  repair,  or 
needing  reconstruction,  but  it  must  be,  (a.)  "in  condition  to 
endanger  persons  or  property  passing  thereon,"  or  (b.) 
"in  condition  to  interfere  with  the  public  convenience  in 
the  use  thereof."  (3.)  The  superintendent  of  streets, 
must,  by  notice  in  writing,  notify  the  owners  or  occupants 
of  lots  or  portions  of  lots  fronting  on  the  portions 
of  the  street,  alley,  etc.,  or  sidewalk,  so  out  of  repair 
or  needing  reconstruction,  to  forthwith  repair  or  recon- 
struct, or  to  both  repair  and  reconstruct  such  portion  of 
such  street,  alley,  etc.,  to  the  center  line  thereof,  in  front  of 
the  property  of  which  he  is  owner,  or  tenant  or  occupant. 
Said  notice  must  be  delivered  to  the  owners  or  occupants 


REPAIRS    AND    RECONSTRUCTIONS         March'l^Tg6"^        165 


personally  or  to  their  agents,~or  must  be  left  on  the  prem- 
ises. [See  Guerin  v.  Reese,  33  Gal.  292,  for  rules  determin- 
ing when  service  other  than  personal  service  is  sufficient 
and  justified  by  the  statute.]  The  notice  must  specify  what 
work  is  required  to  be  done,  how  it  is  to  be  done,  and  what 
material  shall  be  used.  (^.)  The  superintendent  must 
obtain  from  the  council,  by  a  resolution,  order,  or  ordinance 
duly  passed,  authority  to  enter  into  a  contract  with  some 
suitable  person  to  do  the  work  at  the  expense  of  the  owner, 
tenant  or  occupant.  (5.)  The  superintendent  must  post 
conspicuously  in  his  office  for  two  days  specifications  for 
doing  said  work  inviting  bids  for  doing  the 
work.  The  specifications  must  remain  posted  in  the  office 
of  the  superintendent  for  two  official  days;  i,  e.,  it  must  be 
posted  before  the  commencement  of  the  time  on  the  first 
day  when,  by  statute,  the  office  is  required  to  be  opened, 
and  must  remain  posted  during  the  whole  of  the  first  and 
second  day  and  until  the  end  of  the  hour  of  the  second  day 
when  by  statute  the  office  may  be  closed.  [Himmelmann 
v.  Cabii,  49  Cal.  285.J  (6.)  The  bids  must  be  delivered 
to  him  at  his  office  on  or  before  the  second  day  of  said 
posting.  (7.)  On  the  next  day  following  the  expiration 
of  the  said  two  days  of  posting,  the  bids  must  be  opened  by 
the  superintendent.  (8.)  The  superintendent  must  award 
the  contract  to  the  lowest  bidder,  if,  in  his  judgment,  the 
lowest  bid  shall  be  reasonable,  and  a  contract  in  writing 
must  be  signed  by  him.  (9.)  The  work  must  be  com- 
menced within  twenty-four  hours  after  the  contract  shall 
have  been  signed,  and  must  be  completed  without  delay  to 
the  satisfaction  of  the  superintendent.  (10.)  The  super- 
intendent must  make  and  deliver  to  the  contractor,  after 
the  completion  of  the  work,  a  certificate,  which  certifi- 
cate must  state,  in  effect,  that  the  repairs  or  the  reconstruc- 
tion, or  both,  if  both  were  done,  have  been  properly  made 
by  the  contractor,  "to  the  grade,"  and  that  the  charges  for 
the  same  are  reasonable  and  just,  and  that  he,  the  superin- 
tendent, has  accepted  the  same. 

As  the  certificate  must  state  that  the  repairs,  etc.,  have 
been  made  "to  the  grade,"  it  is  evident  that  the  section  con- 
templates that  owners  shall  only  be  required  to  repair  or 
reconstruct  streets  that  have  been  graded  to  the  official 
grade.  For  a  street  cannot  be  graded  except  to  the  official 
grade.  [Emery  v.  S.  F.  Gas  Go.,  28  Cal.  377;  Sec.  2  of  the 
act.J  A  street  may  be  planked  although  it  has  not  been 
graded  to  the  official  grade.  [Knowles  v.  Seale,  64  Cal. 
377.]  But  in  such  a  case,  a  property  owner  could  not  be 
compelled  to  repair  any  portion  of  the  planking  if  out  of 


166    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

repair,  as,  until  graded,  it  could  not  be  repaired  "to  the 
grade." 

The  foregoing,  ending  with  the  certificate  of  the  super- 
intendent are  ten  essentials,  required  by  section  13  of  the 
act,  as  prerequisites  to  the  right  of  the  contractor  to 
recover  from  the  owner  the  expenses  of  the  work.  Two 
more  essentials  are  required  by  section  14  as  a  prerequisite 
to  the  right  of  the  contractor  or  his  assigns  to  maintain  a 
suit  against  the  owner,  namely,  (1.)  recordation  of  the  cer- 
tificate by  the  superintendent  in  a  book  kept  by  him  in  his 
office  for  that  purpose,  properly  indexed,  and  (#.)  demand 
upon  the  owner,  tenant  or  occupant  for  the  amount  which 
is  a  lien  upon  the  land.  The  section  [section  14j  does  not 
state  whether  this  "demand"  may  be  other  than  personal, 
when  the  owner,  etc.,  cannot  conveniently  be  found,  or 
howr  it  shall  be  made;  but,  as  the  proceedings  are  ininvitum, 
it  is  possible  that  in  the  absence  of  express  statutory  pro- 
vision for  any  other  demand,  demand  must  be  made  per- 
sonally upon  the  owner,  tenant  or  occupant,  unless  the  pro- 
vision of  section  14  that  "the  sum  contracted  to  be  paid 
shall  be  a  lien,  the  same  as  provided  in  section  9  of  the 
act,  and  may  be  enforced  in  the  same  manner ,"  should  be 
construed  to  mean  that  the  demand  should  be  made  in  the 
same  manner.  The  demand  may  bs  construed  as  one  of 
the  steps  necessary  to  the  enforement  of  the  lien. 

III.  No  Primary  Duty  Resting  upon  the  Owner  to  Repair 
or  Reconstruct.  In  Eustace  v.  Jahns,  38  Gal.,  3,  sec- 
tions, 14,  15  and  16,  of  the  San  Francisco  street  work  act 
of  1862  [statutes  1862,  pages  399-400]— being  the  sections 
of  that  act  which  correspond  to  sections  13,  14  and  15  of 
the  present  general  street  improvement  act,  or  Vrooman 
act  of  March  18,  1885, — came  before  the  court  for  con- 
struction. In  that  case  the  question  was:  Do  these  sec- 
tions of  the  act  impose  upon  the  owner  of  a  lot  fronting 
upon  a  public  street  the'duty  to  repair  a  defect  in  that 
portion  of  that  public  street  upon  which  his  lot  abuts  or 
fronts?  It  was  held  that  the  duty  imposed  by  these  sec- 
tions of  the  act  upon  the  property  owner  was  not  a  primary 
duty  to  repair,  but  only  attached  or  became  an  existing 
obligation  or  duty  after  the  superintendent  had  served  the 
notice  in  writing  required  by  section  14  of  the  act  of  1862. 
[Section  13  of  the  present  general  street  improvement  act 
— the  Vrooman  act  of  March  18,  1885.]  The  present  gen- 
eral street  improvement  act  is,  in  the  main,  constructed 
upon  the  same  lines  as  the  said  San  Francisco  street  work 
actof!862.  [Statutes  1862,  page  391,  etseq.]  Bearing  this  fact 
in  mind,  and,  as  tending  to  assist  in  correctly  construing 


NO    PRIMARY    DUTY    ON    OWNER   TO    REPAIR    March  U.8l^89ended       167 

sections  13,  14  and  15  of  tire  present  act,  the  following  is 
quoted  from  the  opinion  by  Mr.  Justice  Sprague,  in  Eustace 
v.  Jahns,  supra:  "Upon  a  careful  examination  of  these 
several  acts  [San  Francisco  street  work  acts]  and  such  por- 
tions thereof  as  were  in  force  in  May,  1866,  we  find  that 
by  those  acts  the  entire  supervision,  control  and  manage- 
ment of  the  public  streets,  highways,  lanes,  alleys,  places 
or  courts  within  the  corporate  limits  of  the  city  and  county 
of  San  Francisco  was  and  still  continues  vested  in  the 
board  of  supervisors  and  superintendent  of  the  public 
streets  and  highways  of  said  city  and  county,  and  we  find 
no  authority  delegated  to,  or  duty  imposed  upon,  the  indi- 
vidual owner  of  lands  or  lots  in  said  city  to  improve  or 
repair  any  portions  of  such  streets,  lanes,  alleys,  highways, 
places  or  courts,  or  in  any  manner  interfere  or  meddle  with 
the  same,  in  the  way  of  improvement  or  repair  thereof,  of 
his  own  volition,  or  upon  his  individual  responsibility. 
The  only  duty  imposed  upon  the  individual  owner  of  such 
lots  or  lands  in  said  city  is  the  payment  of  such  assessments 
as  shall  be  lawfully  made  upon  his  lots  or  lands  by  the 
superintendent  of  public  streets  and  highways,  to  defray 
the  expenses  of  opening,  constructing,  improving  or  repair- 
ing the  streets,  highways,  etc.,  after  the  same  shall  have 
been  opened,  constructed,  improved  or  repaired  by  order  of 
the  board  of  supervisors  and  to  the  satisfaction  of  the 
superintendent  of  public  streets  and  highways,  except  in 
the  case  of  special  local  repairs  required  by  written  notice 
from  the  superintendent  of  public  streets  to  be  made  or 
commenced  by  the  owner,  tenant  or  occupant  of  a  lot 
within  three  days  after  the  service  of  such  notice,  specify- 
ing what  improvement  is  required,  as  provided  in  sections 
14,  15  and  16  of  an  act  approved  April  25,  1862,  amenda- 
tory of  and  supplementary  to  the  act  of  1856  heretofore 
referred  to;  [sections  13,  14  and  15  of  the  present  street 
improvement  act, — the  Vrooman  act  of  March  18,  1885,] 
and  this,  it  will  be  observed  by  reference  to  the  sections 
named,  is  not  a  primary  duty  imposed  by  the  statute,  but  is 
left  optional  with  the  superintendent  of  public  streets  and 
highways  to  impose  the  duty  or  not,  in  his  discretion,  and 
does  not  attach  to  or  become  an  existing  obligation  or  duty 
until  after  the  superintendent  has  exercised  his  discretion 
in  the  premises  by  service  of  the  notice  in  writing,  as 
required  by  section  14;  [section  13  of  the  present  act.] 
*  *  And  for  special  local  repairs  or  improvements  con- 
templated by  the  fourteenth  section  of  the  above  act  of 
1862,  and  by  the  tenth  subdivision  of  section  8  of  the 
same  act  as  amended  April  25,  1863,  (statutes  1863,  page 


168          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

528,)  [subdivision  8  of  section  7  of  the  present  street 
improvement  act,]  the  lots  fronting  upon  the  street  on  the 
side  and  at  the  point  where  such  improvements  or  repairs 
are  required  or  made,  are  not  even  liable  to  assessment  to 
defray  the  expenses  of  such  improvements  or  repairs, 
without  a  notice,  as  required  by  section  14,  "[section  13  of 
the  present  act]  has  been  previously  served  upon  the  owner 
or  occupant  of  the  lot,  as  is  manifest  by  subdivision  2  of 
the  same  section  8,  [subdivision  2  of  section  7  of  the  pres- 
ent street  improvement  act, — the  Vrooman  act  of  March 
18,  1885,]  when  read  in  connection  with  subdivision  ten, 
same  section,  and  sections  14  and  15  above  referred  to,  and 
sections  21  and  22,  same  act,  as  amended  in  1863,  (statutes 
1863,  pages  531-2,)  [subdivision  8  of  section  7  and  sections 
13,  14,  20  and  21  of  the  present  act],  and  section  23,  and 
subdivision  2  of  section  25,  same  act  (statutes  1863,  page 
402;)  [Sec.  22  and  sub.  2  of  sec.  34  of  the  present  act].  By 
the  said  sections  22  and  23  [of  the  act  of  1863]  it  is 
made  the  duty  of  the  superintendent  of  public  streets  and 
highways  to  devote  his  entire  trme  and  undivided  attention 
to  the  supervision  and  care  of  the  public  streets  and  high- 
ways, public  buildings,  parks,  etc.,  of  said  city  and  county; 
and  for  that  purpose  the  board  of  supervisors  is  authorized 
to  allow  him  deputies,  not  exceeding  six  in  number;  and 
for  the  faithful  performance  of  his  duties  he  is  required 
to  give  bonds  to  the  city  and  county  in  such  sum  as 
may  be  fixed  by  the  board  of  supervisors.  And, 
under  said  section  14,  subdivisions  2  and  10  of  said  sec- 
tion 8,  and  said  section  21,  [section  13,  subdivisions 
2  and  8  of  section  7  and  section  20,  of  the  present  act]  the 
superintendent  of  streets  is  manifestly  authorized  to  con- 
tract for  simple  repairs  of  street  improvements  already  con- 
structed and  accepted  by  the  proper  authority,  and  cause 
the  same  to  be  made,  without  reference  to  the  adjoining 
property,  and  the  expense  of  such  repairs  would  be  properly 
chargeable  to  the  street  department  fund  of  the  city  arid 
county.  [See  sections  25  and  26  of  the  Vrooman  act  of  Mar. 
18,  1885.]  *  *  *  From  a  most  careful  consideration  of 
all  the  statutes  relating  to  the  public  streets  and  highways 
of  the  city  and  county  of  San  Francisco,  we  find  no  personal 
duty  primarily  or  inceptively  cast  upon  the  individual  owners 
of  lots  or  lands  therein,  in  respect  to  the  care,  management, 
control,  improvement  or  repair  of  the  public  streets  or 
highways;  *  *  *  and  we  are  unable  to  comprehend  by 
what  process  of  ratiocination  the  duty  to  repair  a  public 
street  or  highway  is  devolved  upon  an  individual,  from  the 
fact  that  he  is  liable  to  be  notified  by  the  superintendent  of 


I  VERSITY) 


CONSTITUTIONALITY  OF  SECTION  THIRTEEN     M^£$SF***       169 


streets  to  make  specific  repairs,  or  owns  or  occupies  a  lot 
liable  to  be  assessed  to  defray  the  expenses  of  repairs,  when 
made  by  another  at  the  instance  of  the  superintendent." 
[Eustace  v.  Jahns,  38  Gal.  pp.  15-17,  17  and  19.] 

Section  23  of  the  present  general  street  work  act  is  the 
section  which  corresponds  to  section  24  of  the  act  of  1862, 
referred  to  in  Eustace  v.  Jahns,  38  Cal.  p.  18.  [See  section 
23  infra.] 

IV.  Constitutionality  of  Section  Thirteen.  Sections  13 
and  14  provide  that  the  expense  of  repairing  or  reconstruct- 
ing any  street,  avenue,  lane,  etc.,  or  any  sidewalk,  out  of 
repair  or  needing  reconstruction,  shall  be  charged  against 
the  owners  or  occupants  of  the  lots  or  portions  of  lots 
fronting  such  portion  of  said  street,  avenue,  alley,  etc.,  or 
sidewalk,  as  is  out  of  repair  or  needing  reconstruction,  and 
shall  be  a  lien,  the  same  as  provided  in  section  9  of  the  act, 
and  may  be  enforced  in  the  same  manner. 

In  the  case  of  Hart  v.  Gaven,  12  Cal.  477,  work  had  been 
done  by  a  contractor  under  sections  56,  57,  58  and  59  of  the 
San  Francisco  consolidation  act,  passed  April  19,  1856. 
These  sections  of  the  consolidation  act  correspond  to  sec- 
tions 13,14  and  15  of  the  present  street  work  act,  and  it  was 
held  in  this  case  of  Hart  v.  Gaveii  that  "the  legislature  had 
the  right  to  provide,  in  the  act  known  as  the  'Consolidation 
act  for  the  government  of  the  city  and  county  of  San  Fran- 
cisco; that  the  owners  of  lots  in  said  city  should  keep  the 
streets  in  front  of  their  lots  in  repair,  and  if  an  owner  neg- 
lects to  do  so  for  three  days,  after  notice  from  the  superin- 
tendent of  public  streets,  the  superintendent  has  the  right 
to  make  a  contract  for  that  purpose;  and  an  action  will  lie 
in  the  name  of  the  party  performing  the  work  against  the 
owner  of  the  lot  adjacent  for  that  amount."  The  court,  per 
Baldwin,  J.,  said:  "Some  provision  being  necessary  for 
repairing  the  streets,  the  mode  by  which  this  is  done,  if  it 
be  uniform  and  equal  in  its  operation,  must  be  left  to  legis- 
lative discretion.  This  duty  of  repairing  the  streets  is  in 
the  nature  of  a  public  burden  or  tax,  and  we  do  not  see  that 
the  rule  adopted  applying  to  all  the  streets  of  a  municipality 
is  not  as  near  an  approximation  to  uniformity  as  could  well 
be  attained.  Absolute  justice  in  the  operation  of  human 
laws  is  impossible;  there  is  no  rule,  however  just  in  its 
general  working,  which  has  not  its  exceptional  instances  of 
hardship;  and  especially  in  the  results  of  the  taxing  power 
is  this  incurable  infirmity  of  laws  to  secure  exact  and  equal 
justice  to  all  those  upon  whom  they  operate,  apparent.  No 
tax  law  could  ever  stand  if  subjected  to  a  rigid  test  on  the 
score  of  uniformity.  All  we  can  expect  is  a  general  equality 


170          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

of  operation;  and  we  think  that  this  is  secured  by  this  act." 
As,  however,  sections  13  and  14  seem  to  provide  for  a 
personal  judgment  against  the  property  owner  in  an  action 
to  recover  the  costs  of  repairs;  and,  in  view  of  the  fact  that, 
as  stated  by  Mr.  Justice  McKinstry  in  People  v.  Lynch,  51 
Cal.  22,  "It  has  been  repeatedly  held  that  an  attempt  by  the 
legislature  to  compel  each  lot  upon  a  street  to  pay  the  whole 
expense  of  grading  and  paving  along  its  front,  cannot  be 
maintained,  because,  while  there  is  an  apparent  uniformity, 
the  measure  of  equality  required  by  the  constitution  is 
entirely  wanting,"  it  might  be  well,  for  these  reasons,  to 
further  consider  the  constitutionality  of  this  part  of  the  act 
in  respect  to  these  two  features,  viz.,  (1.)  the  provision  for  a 
"personal"  judgment,  and  (2.)  as  to  the  equality  or  inequal- 
ity of  the  assessment. 

(A.)  In  the  first  place,  section  13  might  be  construed  as 
imposing  a  personal  liability  upon  the  owner  to  pay  the 
expense  of  the  repairs  or  reconstruction.  An  act  imposing 
a  personal  liability  upon  the  owner  for  "improving"  a  street 
in  the  first  instance  is  unconstitutional.  [Taylor  v.  Palmer, 
31  Cal.  241;  Manning  v.  Den,  90  Cal.  611.]  As  to  whether 
the  same  principle  is  applicable  to  the  case  of  "repairs"  or 
"reconstruction"  provided  for  by  section  13  of  the  act,  is  at 
least  questionable  in  the  absence  of  a  decision  by  the 
Supreme  Court  directly  upon  the  point.  It  is  possible,  how- 
ever, that  a  personal  liability,  and  the  personal  penalties 
provided  by  section  15  of  the  act,  may,  in  the  case  of  repairs 
or  reconstructions,  be  justified  as  an  exercise  of  the  police 
powers  of  the  state. 

(B.)  1.  Section  14  makes  the  expense  of  the  work  done 
under  section  13,  a  lien  upon  the  property,  the  same  as 
provided  in  section  9  of  the  act.  But  there  may  be  a 
question  as  to  the  constitutionality  of  such  provision,  even 
if  there  be  no  personal  liability.  This  question  arises  out 
of  the  standard  of  apportionment  of  the  expense,  or  rather 
it  arises  out  of  the  want  of  a  standard.  Subdivisions  1  and 
2  of  section  7,  make  the  expenses  of  all  improvements, 
" except  such  as  are  done  by  contractors  under  the  provisions  of 
section  thirteen  of  this  act,"  assessable  upon  the  lots  and 
lands  fronting  upon  the  work,  "each  lot  or  portion  of  a  lot 
being  separately  assessed,  in  proportion  to  the  frontage,  at  a 
rate  per  front  foot  sufficient  to  cover  the  total  expense  of  the 
work."  But,  as  to  the  expenses  of  the  work  done  by 
contractors  under  the  provisions  of  section  13,  there  is  no 
such  apportionment.  Each  lot  is  made  liable  for  the  whole 
cost  of  the  work  done  in  front  of  it  upon  the  sidewalk,  and 
to  the  center  line  of  the  street,  avenue,  alley,  etc.  While 


-CONSTITUTIONALITY  OF    SECTION    THIRTEEN    Marcthl%Sended       171 


the  front-foot  plan  of  assessment  is  constitutional,  because, 
it  in  effect,  makes  an  assessment  district  of  the  street,  and 
apportions  the  expenses  of  the  improvement  upon  the  lots 
in  proportion*  to  their  frontage,  thus  making  some  sort  of 
a  rough  approximation  to  equality  of  apportionment,  still, 
as  is  said  hy  Judge  Cooley  in  his  work  on  Constitutional 
Limitations  [page  508,  3rd  edition],  "A  very  different  case 
is  presented  where  the  legislature  undertakes  to  provide 
that  each  lot  upon  a  street  shall  pay  the  whole  expense  of 
grading  and  paving  the  street  along  its  front.  For,  while 
in  such  a  case  there  would  he  something  having  the  out- 
ward appearance  of  apportionment,  it  requires  but  slight 
examination  to  discover  that  it  is  a  deceptive  semblance 
only,  and  that  the  measure  of  equality  which  the  constitu- 
tion requires  is  entirely  wanting."  See  also  People  v. 
Lynch,  51  Gal.  22-23,  where  Mr.  Justice  McKinstry  says: 
"It  has  been  repeatedly  held,  that  an  attempt  by  the  legis- 
lature to  compel  each  lot  upon  a  street  to  pay  the  whole 
expense  of  grading  and  paving  along  its  front  cannot  be 
maintained,  because  while  there  is  an  apparent  uniformity, 
the  measure  of  equality  required  by  the  constitution  is 
entirely  wanting." 

On  the  other  hand,  Judge  Dillon  in  his  work  on  Muni- 
cipal Corporations  {  Vol.  2,  §753,  3rd  Ed.],  says:  "It  may  be 
true  that  in  some  instances  more  hardships  will  be  occa- 
sioned by  requiring  each  owner  to  make  or  pay  for  the 
improvement  in  front  of  his  own  property  than  if  the  cost 
were  assessed  on  the  basis  of  frontage  or  of  supposed  benefits 
received;  still,  it  seems  to  the  author  difficult  to  find  satis- 
factory and  solid  grounds  on  which  to  discriminate  the 
cases  so  as  to  hold  that  one  is  within  the  constitutional 
power  of  the  legislature  and  the  other  is  not." 

2.  Again  it  was  stated  by  Mr.  Justice  Sharswood  in  Ham- 
rnett  r.  Philadelphia,  65  Penn.  St.  155-6;  s.  c.  3  Am.  Rep. 
615,  that  the  legislature  has  not  power  in  any  case  to  require 
the  owners  to  repair  or  reconstruct  a  street  after  it  has  once 
been  improved.  The  learned  justice  says:  "The  original 
paving  of  a  street  brings  the  property  bounding  upon  it  into 
the  market  as  building  lots.  Before  that  it  is  a  road,  not  a 
street.  It  is  therefore  a  local  improvement,  with  benefits 
almost  exclusively  peculiar  to  the  adjoining  properties. 
Such  a  case  is  clearly  within  the  principle  of  assessing  the 
cost  on  the  lots  lying  upon  it.  Perhaps  no  fairer  rule  can 
be  adopted  than  the  proportion  of  feet  front,  although  there 
must  be  some  inequalities  if  the  lots  differ  in  situation  and 
depth.  Appraising  their  market  values  and  fixing  the  pro- 
portion according  to  these,  is  a  plan  open  to  favoritism  or 


172    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

corruption,  and  other  objections.  No  system  of  taxation 
which  the  wit  of  man  ever  devised  has  been  found  perfectly 
equal.  But  where  a  street  is  once  opened  and  paved,  thus 
assimilated  with  the  rest  of  the  city  and  made  a  part  of  it, 
all  the  particular  benefits  to  the  locality  derived  from  the 
improvements  have  been  received  and  enjoyed.  Repairing 
streets  is  as  much  a  part  of  the  ordinary  duties  of  the  muni- 
cipality— for  the  general  good — as  cleaning,  watching  and 
lighting.  It  would  lead  to  monstrous  injustice  and  inequality 
should  such  general  expenses  be  provided  for  by  local  assess- 
ments."  [See  also  Wistar  v.  Philadelphia,  80  Pa.  St.  505;  s.  c. 
21  Am.  Rep.  112.]  But  these  Pennsylvania  cases  seem  to 
be  contrary  to  the  weight  of  authority.  Judge  Dillon  [Dil- 
lon's Municipal  Corporations,  §  780,  3rd  ed.]  says:  "Not 
only  the  power  to  tax,  but  the  power  to  make  local  improve- 
ments at  the  expense  of  the  property  benefited,  is,  like  all 
other  legislative  power  of  the  municipality,  a  continuing  one, 
unless  there  be  something  to  indicate  the  contrary;  and 
hence  it  is  not  exhausted  by  being  once  exercised.  There- 
fore, the  power  to  compel  property  owners  to  pave,  ordina- 
rily extends  to  compelling  them  to  repave  when  required  by 
the  municipal  authorities."  [See  McCormick  v.  Patchin,53 
Mo.  33,  s.  c.  14  Am.  Rep.  440,  where  Hammett  v.  Philadel- 
phia is  commented  upon.]  And  if  property  owners  may  be 
compelled  to  "  repave,"  it  would  seem  that  they  may  like- 
wise be  compelled  to  "repair." 

When  the  municipality  itself  takes  up  a  pavement  or  dis- 
turbs the  surface  of  a  street,  for  the  purpose  of  laying  gas 
or  water  pipes,  or  for  the  purpose  of  constructing  a  sewer, 
the  cost  of  repairing  the  street  or  replacing  the  pavement 
cannot  be  assessed  against  the  property  owners.  [City  of 
Bloomington  v.  Palmer,  67  la.  681.]  But  see  section  20  of 
the  act,  where  it  is  expressly  provided  that,  after  partial 
acceptance  of  a  street,  prior  to  the  construction  of  a  sewer, 
the  lots  liable  to  assessment  for  the  cost  of  constructing  a 
sewer  shall  remain  liable  to  be  assessed  "  for  the  cost  of 
'repairs  and  restoration  of  the  street  damaged  in  the  said 
construction." 

3.  But,  though  it  is  possible  that  section  13  might  be 
open  to  the  above  constitutional  objections,  still  it  is  quite 
probable  that  the  power  to  compel  a  property  owner  to 
repair  or  reconstruct  that  portion  of  a  street  which  lies  in 
front  of  his  property,  and  to  make  his  property  chargeable 
with  the  whole  cost  thereof,  is  a  part  of  the  police  powers  of 
the  state,  and  therefore  constitutional. 

In  Reinken  v.  Fuehring,  (Irid.)  30  N.  E.  Rep.  414,  it  was 
held  that  the  ciiy  may,  in  the  exercise  of  the  police  powers- 


CONSTITUTIONALITY  OF  SECTION  THIRTEEN     March'lfiSended       173 

conferred  upon  it  by  the  state,  order  its  streets  to  be  swept, 
and  assess  the  abutting  property  owners  to  pay  the  expenses 
of  the  sweeping  opposite  their  property.  In  this  case  the 
property  owner  was  held  liable  for  sweeping  the  street,  i.  e., 
the  roadway,  as  well  as  the  sidewalk.  [See  also  Village  of 
Carthage  v.  Frederick,  (N.  Y.)25  N.  E.  430;  In  re  Goddard, 
16  Pick,  504;  s.  c.  28  Am.  Dec.  259;  Sands  v.  City  of  Rich- 
mond, 31  Gratt,  571;  s.  c.  31  Am.  Rep.  742.]  In  "this  latter 
case,  Sands  v.  City  of  Richmond,  it  was  held  that  "a  city 
ordinance,  requiring  the  owners  of  lots  on  streets  which  have 
been  graded,  paved  and  guttered,  to  pave  the  sidewalks 
adjoining  and  in  front  of  their  lots,  is  valid,  and  if  the  own- 
ers do  not  comply,  the  city  may  do  the  work  and  collect  the 
expenses  from  the  owners."  It  was  not  decided  whether  the 
power  to  compel  the  property  owner  to  improve  the  side- 
walk in  front  of  his  property  is  referable  to  the  police  power, 
or  whether  it  belongs  to  the  taxing  power.  But,  to  sustain 
its  position,  the  court  cited  the  case  of  Goddard,  Petitioner, 
1G  Pick.  504,  in  which  it  was  held  that  the  city  might,  in 
the  exercise  of  its  police  powers,  compel  the  property  owner 
to  sweep  the  snow  off  of  that  portion  of  the  sidewalk  which 
lies  in  front  of  his  property,  and  in  Reinken  v.  Fuehring, 
supra,  30  N.  E.  414,  it  was  held  that,  in  the  exercise  of  its 
police  powers,  the  city  might  compel  the  property  owner  to 
pay  the  expense  of  sweeping  the  street  in  front  of  his  prop- 
erty,— thus  holding  that  the  power  extends  over  roadways  as 
well  as  sidewalks.  Therefore,  if  the  decision  in  Goddard, 
Petitioner,  16  Pick.  504,  supports  the  decision  in  Sands  v. 
City  of  Richmond,  31  Gratt,  571,  then,  by  a  parity  of  reason- 
ing, the  decision  in  Reinken  v.  Fuehring  supports  the  posi- 
tion that,  in  the  exercise  of  its  police  powers,  the  city  may 
compel  a  property  owner  to  do  any  of  the  work  mentioned 
in  section  13  of  the  act,  and  may  assess  the  expenses  thereof 
against  his  property,  as  provided  in  said  section  13  and 
section  14. 

As,  however,  it  is  the  purpose  of  this  book,  not  to  discuss 
general  principles  of  street  law,  or  questions  of  constitutional 
law,  but  to  consider  only  the  machinery  provided  by  our 
street  work  acts  for  street  improvements,  and  the  decisions 
of  our  own  Supreme  Court  expounding  and  construing  those 
acts,  the  reader  will  be  referred  to  other  treatises  for  a 
further  consideration  of  the  questions  of  constitutional  law 
arising  under  these  sections  of  the  act.  The  aim  of  this 
book  will  be  accomplished  if  it  succeeds  in  suggesting  the 
questions  of  constitutionality  that  might  possibly  arise  in 
this  connection.  The  author's  own  opinion  is,  that  tho 
provisions  of  sections  13,  14  and  15  of  the  act  are  referable 


174    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

to  the  police  powers  delegated  to  the  municipalities  by  the 
state;  and,  as  an  exercise  of  police  powers,  they  are  constitu- 
tional, even  to  the  extent  of  imposing  a  personal  liability  upon 
the  property  owner  to  improve  the  street  in  front  of  his  prop- 
erty, after  notice  from  the  superintendent,  or  to  pay  the 
expense  thereof,  if  done  by  some  one  else  under  a  contract 
with  the  superintendent  of  streets. 

SECTION  14.  If  the  expenses  of  the  work  and  material  for  such  improve- 
ments, after  the  completion  thereof,  and  the  delivery  to  said  contractor  of 
said  certificate,  be  not  paid  to  the  contractor  so  employed,  or  his  agent  or 
assignee,  on  demand,  the  said  contractor,  or  his  assignee,  shall  have  the 
right  to  sue  such  owner,  tenant,  or  occupant,  for  the  amount  contracted  to 
be  paid  ;  and  said  certificate  of  the  superintendent  of  streets  shall  be  prima 
facie  evidence  of  the  amount  claimed  for  said  work  and  materials,  and  of 
the  right  of  the  contractor  to  recover  for  the  same  in  such  action.  Said 
certificate  shall  be  recorded  by  the  said  superintendent  of  streets  in  a  book 
kept  by  him  in  his  office  for  that  purpose,  properly  indexed,  and  the  sum 
contracted  to  be  paid  shall  be  a  lien,  the  same  as  provided  in  section  nine 
of  this  act,  and  may  be  enforced  in  the  same  manner.  [Statutes  1885,  page 
158.] 

[Section  14  never  has  been  amended.] 

SECTION  15.  In  addition,  and  as  cumulative  to  the  remedies  above  given, 
the  city  council  shall  have  power,  by  resolution  or  ordinance,  to  prescribe 
the  penalties  that  shall  be  incurred  by  any  owner  or  person  liable,  or  neg- 
lecting, or  refusing  to  make  repairs  when  required,  as  provided  in  section 
(13)  thirteen  of  this  act,  which  fines  and  penalties  shall  be  recovered  for 
the  use  of  the  city  by  prosecution  in  the  name  of  the  people  of  the  state  of 
California,  in  the  court  having  jurisdiction  thereof,  and  may  be  applied,  if 
deemed  expedient  by  the  said  council,  in  the  payment  of  the  expenses  of 
any  such  repairs  not  otherwise  provided  for.  [Statutes  1885,  page  158.} 

[Section  15  never  has  been  amended.] 

SECTION  16.  The  person  owning  the  fee,  or  the  person  in  whom,  on  the 
day  the  action  is  commenced,  appears  the  legal  title  to  the  lots  and  lands, 
by  deeds  duly  recorded  in  the  county  recorder's  office  of  each  county,  or 
the  person  in  possession  of  lands,  lots  or  portions  of  lots  or  buildings  under 
claim,  or  exercising  acts  of  ownership  over  the  same  for  himself,  or  as  the 
executor,  administrator  or  guardian  of  the  owner,  shall  be  regarded, 
treated  and  deemed  to  be  the  "owner"  (for  the  purpose  of  this  law), 
according  to  the  intent  and  meaning  of  that  word  as  used  in  this  act.  And 
in  case  of  property  leased,  the  possession  of  the  tenant  or  lessee  holding 
and  occupying  under  such  persons  shall  be  deemed  to  be  the  possession  of 
such  owner.  [Statutes  1885,  page  159.} 

[Section  16  never  has  been  amended.] 

Section  17  of  the  San  Francisco  street  work  act  of  1872 
[statutes  1872,  page  818,]  is  similar  to  section  16  of  the 
present  general  street  improvement  act.  Section  17  of  the 
act  of  1872  came  before  the  Supreme  Court  in  Phelan  v. 


SECTION    SIXTEEN OWNER  March 'isf  1885* °f       175 

Dunne,  72Cal.  229,  and  in  Parker  v.  Bernal,  66  Cal.  113.  In 
the  latter  case, — an  action  to  recover  on  a  street  assessment, 
—it  was  held  that  this  provision  of  the  statute  made  an 
executrix  an  osvner  for  all  the  purposes  of  the  action,  and 
that  therefore  the  action  might  be  brought  against  the 
executrix,  even  though  the  heirs  of  the  deceased  former 
owner  should  be  in  fact  the  owners.  On  the  other  hand, 
in  Phelan  v.  Dunne,  72  Cal.  229,  it  was  held  that  the  heirs 
or  devisees  of  a  deceased  person  are  in  fact  the  owners  of 
the  property,  subject  to  the  liens  of  the  creditors,  etc.,  and 
that,  since  they  are  in  fact  such  owners,  they  alone  need  be 
made  parties  defendant,  even  though  under  this  section  of 
the  act  the  executors  are,  for  the  purposes  of  the  act,  to  be 
deemed  owners.  It  was  held  that  while  the  executors  might 
be  proper  parties  they  were  not  necessary  parties,  and  there- 
fore the  plaintiff  need  not  make  them  parties  unless  he 
so  desires.  Mr.  Justice  Patterson,  delivering  the  opinion 
said:  "It  may  be  that  under  these  provisions  [i.  e.,  sections 
13  and  17  of  the  act  of  April  1,  1872;  sections  12  and  16 
of  the  present  street  improvement  act, — the  Vrooman  act 
of  March  18,  1885,]  persons  other  than  the  heirs  and 
devisees  are  proper  parties  to  the  action,  and  that  their 
rights  cannot  be  foreclosed  unless  they  are  made  defendants, 
but  as  to  that  we  express  no  opinion.  It  is  sufficient  to  say. 
that  the  defendant  [the  devisee  under  the  will  of  the 
deceased  former  owner]  is  the  owner  in  fee,  that  he  is  the 
only  necessary  party;  and  that  plaintiff  is  entitled,  under 
this  act,  to  a  decree  of  foreclosure,  whatever  may  be  the 
rights  of  other  parties  interested,  who  are  not  joined  by 
defendants."  [See  supra,  pages  146-8.]  Of  course  the  care- 
ful practitioner  will  not  fail  to  make  parties  to  the  action 
those  who  are  proper  parties  defendant,  merely  because 
they  may  not  be  necessary  parties.  The  conclusion  deduci- 
ble  from  these  decisions  is  that  the  executor  or  administra- 
tor of  an  estate  might  be  made  the  sole  party  defendant, 
as  was  done  in  Parker  v.  Bernal,  66  Cal.  113,  since  the  act 
makes  him  for  all  purposes  of  the  act  an  "owner."  By  a 
fiction  he  is  made  the  owner  for  the  purposes  of  the  act. 
Or  the  heirs  or  devisees,  in  whom  the  title  is  in  fact  vested, 
may  alone  be  made  parties  defendant,  as  was  the  case  in 
Phelan  v.  Dunne,  72  Cal.  229,  since  in  such  case  the 
"owners"  in  fact  are  made  defendants. 

In  the  absence  of  provisions  such  as  those  contained  in 
section  16  of  the  act,  declaring  that  executors,  administra- 
tors and  others  shall,  for  all  the  purposes  of  the  act,  be 
regarded,  treated  and  deemed  to  be  the  "owner"  according 
to  the  intent  and  meaning  of  that  word,  such  persons  could 


176          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

not  be  treated  as  owners  for  any  of  the  purposes  of  the  act. 
[Mulligan  v.  Smith,  59  Gal.  206,  225;  Kahn  v.  Board  of 
Supervisors,  79  Cal.  388.] 

SECTION  17.  Any  tenant  or  lessee  of  the  lands  or  lots  liable  may  pay 
the  amount  assessed  against  the  property  of  which  he  is  the  tenant  or 
lessee  under  the  provisions  of  this  act,  or  he  may  pay  the  price  agreed  on 
to  be  paid  under  the  provision  of  section  thirteen  of  this  act,  either  before 
or  after  suit  brought,  together  with  coste,  to  the  contractor,  or  his  assigns, 
or  he  may  redeem  the  property,  if  sold  on  execution  or  decree  for  the 
benefit  of  the  owner,  within  the  time  prescribed  by  law,  and  deduct  the 
amount  so  paid  from  the  rents  due  and  to  become  due  from  him,  and 
for  any  sums  so  paid  beyond  the  rents  due  from  him,  he  shall 
have  a  lien  upon  and  may  retain  possession  of  the  said  land  and  lots  until 
the  amount  so  paid  and  advanced  be  satisfied,  with  legal  interest,  from 
accruing  rents,  or  by  payment  by  the  owner.  [Statutes  1885,  page  159.} 

[Section  17  never  has  been  amended.] 

SECTION  18.  The  records  kept  by  the  superintendent  of  streets  of  said 
city,  in  conformity  with  the  provisions  of  this  act,  and  signed  by  him, 
shall  have  the  same  force  arid  effect  as  other  public  records,  and  copies 
therefrom,  duly  certified,  may  be  used  in  evidence  with  the  same  effect  as 
the  originals.  The  said  records  shall,  during  all  office  hours,  be  open  to 
the  inspection  of  any  citizen  wishing  to  examine  them,  free  of  charge 
[Statutes  1885,  page  159.} 

[Section  18  never  has  been  amended.] 

SECTION  19.  Notices  in  writing  which  are  required  to  be  given  by  the 
superintendent  of  streets  under  the  provisions  of  this  act,  may  be  served 
by  any  person  with  the  permission  of  the  superintendent  of  streets,  and 
the  fact  of  such  service  shall  be  verified  by  the  oath  of  the  person  making 
it,  taken  before  the  superintendent  of  streets,  who  for  that  purpose  and  for 
all  other  purposes,  and  in  all  cases  where  a  verification  is  required  under 
the  provisions  of  this  act  is  hereby  authorized  to  administer  oaths,  or 
other  person  authorized  to  administer  oaths,  or  such  notices  may  be  deliv- 
ered to  the  superintendent  of  streets  himself,  who  must  also  verify  the 
service  thereof,  and  who  shall  keep  a  record  of  the  fact  of  giving  such 
notices,  when  delivered  by  himself  personally,  and  also  of  the  notices  and 
proof  of  service  when  delivered  by  any  other  person.  [Amendment  approved 
March  U,  1889.  Statutes  1889,  p.  170.} 

[Section  19  was  amended  by  the  act  of  March  14,  1889.  Statutes  1889, 
p.  170.] 

SECTION  20.  Whenever  any  street,  or  portion  of  a  street  has  been  or 
shall  hereafter  be  fully  constructed  to  the  satisfaction  of  the  superintend- 
ent of  streets  and  of  the  city  council,  and  is  in  good  condition  throughout, 
and  a  sewer,  gas  pipes,  and  water  pipes  are  laid  therein,  under  such  regu- 
lations as  the  city  council  shall  adopt,  the  same  shall  be  accepted  by  the 
city  council,  by  ordinance,  and  thereafter  shall  be  kept  in  repair  and 
improved  by  the  said  municipality;  the  expense  thereof,  together  with 
the  assessment  for  street  work  done  in  front  of  city  property,  to  be  paid 
out  of  a  fund  to  be  provided  by  said  council  for  that  purpose ;  provided, 
that  the  city  council  shall  not  accept  of  any  portion  of  the  street  less  than 
the  entire  width  of  the  roadway  (including  the  curbing),  and  one  block  in 


SECTIONS  TWENTY-TWENTY-THREE       Schl^isl'  23'  ACt  °f       177 


len-th,  or  one  entire  crossing;  and  provided  further,  that  the  city  council 
may  partially  or  conditionally  accept  any  street,  or  portion  of  a  street 
without  a  sewer,  or  gas  pipes,  or  water  pipes,  therein,  if  the  ordinance  of 
acceptance  expressly  states  that  the  council  deems  such  sewer,  or  gas 
pipes,  or  water  pipes,  to  be  then  unnecessary,  but  the  lots  of  land  pre- 
viously or  at  any  time  assessable  for  the  cost  of  constructing  a  sewer,  shall 
remain  and  be  assessable  for  such  cost  and  for  the  cost  of  repairs  and  restor- 
ation of  the  street  damaged  in  the  said  construction,  whenever  said  council 
shall  deem  a  sewer  to  be  necessary,  and  shall  order  it  to  be  constructed, 
the  same  as  if  no  partial  or  conditional  acceptance  had  ever  been  made. 
The  superintendent  of  streets  shall  keep  in  his  office  a  register  of  all  streets 
accepted  by  the  city  council  under  this  section,  which  register  shall  be 
indexed  for  easy  reference  thereto.  [Statutes  1885,  p.  160.] 
[Section  20  never  has  been  amended.] 

When  a  street  has  been  accepted  by  the  city  council,  the 
expense  of  constructing  and  repairing  the  sidewalks  must 
be  paid  by  the  municipality.  The  provisions  of  section  20 
apply  to  "sidewalks"  as  well  as  to  "roadways."  [Bonnet 
v.  San  Francisco,  65  Gal.  230.] 


x-  21.  The  superintendent  of  streets  shall  keep  a  public  office  in 
some  convenient  place  within  the  municipality,  and  such  records  as  may 
be  required  by  the  provisions  of  this  act.  He  shall  superintend  and  direct 
the  cleaning  of  all  sewers,  and  the  expense  of  the  same  shall  be  paid  out 
of  the  street  or  sewer  fund  of  said  city.  [Statutes  1885,  p.  160.] 

[Section  21  never  has  been  amended.] 

SECTION  22.  It  shall  be  the  duty  of  the  superintendent  of  streets  to  see 
that  the  laws,  ordinances,  orders,  and  regulations  relating  to  the  public 
streets  and  highways  be  fully  carried  into  execution,  and  that  the  penal- 
ties thereof  are  rigidly  enforced.  He  shall  keep  himself  informed  of  the 
condition  of  all  the  public  streets  and  highways,  and  also  of  all  public 
buildings,  parks,  lots,  and  grounds  of  said  city,  as  may  be  prescribed  by 
the  city  council.  He  shall,  before  entering  upon  the  duties  of  his  office, 
give  bonds  to  the  municipality,  with  such  sureties  and  for  such  sums  as 
may  be  required  by  the  city  council  ;  and  should  he  fail  to  see  the  laws, 
ordinances,  orders  and  regulations  relative  to  the  public  streets  or  high- 
ways carried  into  execution,  after  notice  from  any  citizen  of  a  violation 
thereof,  he  and  his  sureties  shall  be  liable  upon  his  official  bond  to  any 
person  injured  in  his  person  or  property  in  consequence  of  said  official  neg- 
lect. [Statutes  1885,  p.  160.] 

[Section  22  never  has  been  amended.] 

SECTION  23.  If,  in  consequence  of  any  graded  street  or  public  highway 
improved  under  the  provisions  of  this  act,  being  out  of  repair  and  in  con- 
dition to  endanger  persons  or  property  passing  thereon,  any  person  while 
carefully  using  said  street  or  public  highway,  and  exercising  ordinary  care 
to  avoid  the  danger,  suffer  damage  to  his  person  or  property,  through  any 
such  defect  therein,  no  recourse  for  damages  thus  suffered  shall  be  had 
against  such  city  ;  but  if  such  defect  in  the  street  or  public  highway  shall 
have  existed  for  the  period  of  twenty-four  hours  or  more  after  notice 
thereof  to  the  said  superintendent  of  streets,  then  the  person  or  persons  on 


178         STREET  WORK  LAW STREET   IMPROVEMENT    ACT 

whom  the  law  may  have  imposed  the  obligations  to  repair  such  defect  in  the 
street  or  public  highway,  and  also  the  officer  or  officers  through  whose  official 
negligence  such  defect  remains  unrepaired,  sb?  11  be  jointly  and  severally 
liable  to  the  party  injured  for  the  damage  sustained ;  pr  <vided,  that  said 
superintendent  has  the  authority  to  make  said  repairs,  under  the  direction 
of  the  city  council,  at  the  expense  of  the  city.  [Statutes  1885,  p.  161.} 
[Section  23  of  the  act  never  has  been  amended.] 

Section  24  of  the  San  Francisco  street  work  act  of  1862, 
as  amended  in  1863  [statutes  1863,  p.  532],  is  the  section  of 
that  act  corresponding  to  section  23  of  the  present  street 
improvement  act,  and  in  Eustaces.  Jahns,38  Gal.  pp.  18-I9r 
Mr.  Justice  Sprague  spoke  of  this  section  of  the  act  of  1862,  as 
follows:  "This  is  the  section  containing  the  law  which 
seems  to  be  especially  relied  upon  by  respondent  as  fixing 
the  liability. of  defendant  in  this  case.  But  we  cannot  dis- 
cover that,  with  respect  to  private  citizens  or  individuals, 
it  creates  any  new  liability  or  imposes  any  duty.  The 
manifest  design  and  only  effect  of  the  section  is  to  exempt 
the  city  and  county,  in  its  corporate  capacity,  from  the 
liability  which,  at  common  law,  would  otherwise  attach, 
by  reason  of  the  absolute  and  exclusive  control  of  the  streets 
and  public  highways  delegated  to  the  corporation  by  the 
provisions  of  its  charter,  and  transfer  such  responsibility 
to  individual  officers,  agents  and  employes  of  the  corpora- 
tion whose  personal  neglect  or  malfeasance  may  have  occa- 
sioned the  injury.  These  streets  and  public  highways  are 
public  property,  opened,  constructed,  controlled,  improved 
and  repaired  for  public  use  and  benefit,  by  the  city  and 
county  government,  and  no  private  individual  possesses 
any  exclusive  right  to  occupy,  use  or  control  any  portion 
thereof,  by  reason  of  his  ownership  or  occupancy  of  adja- 
cent lots  and  premises,  by  virtue  of  any  statute  of  the  state, 
and  we  are  unable  to  comprehend  by  what  process  of  rati- 
ocination the  duty  to  repair  a  public  street  or  highway  is 
devolved  upon  an  individual  from  the  fact  that  he  is  liable 
to  be  notified  by  the  superintendent  of  streets  to  make 
specific  repairs,  or  owns  or  occupies  a  lot  liable  to  be 
assessed  to  defray  the  expenses  of  repairs,  when  made  by 
another  at  the  instance  of  the  superintendent/' 

SECTION  24.  The  city  council  of  such  city  shall  have  full  power  and 
authority  to  construct  sewers,  gutters,  and  manholes,  and  provide  for  the 
cleaning  of  the  same,  and  culverts  or  cesspools,  or  crosswalks  or  sidewalks, 
or  any  portion  of  any  side  walk, upon  or  in  any  street,  avenue, lane,  alley,  court 
or  place  in  such  city ;  and  also  for  drainage  purposes,  over  or  through  any 
right  of  way  obtained  or  granted  for  such  purposes,  with  necessary  and 
proper  outlet  or  outlets  to  the  same,  of  such  materials,  in  such  a  manner, 
and  upon  such  terms  as  it  may  be  deemed  proper.  None  of  the  work  or 
improvements  described  in  this  section  shall  be  stayed  or  prevented  by 


SECTIONS     TWENTY-FOUR-TWENTY-SEVEN      of  the^t '  26  and  27      179 

any  written  or  any  other  remonstrance  or  objection,  unless  such  council 
deems  proper.  [Amendment  approved  March  11,  1893,  statutes  1893,  p.  173.} 

[Section  24  was  amended  by  the  act  of  March  14,  1889,  statutes  1889,  p. 
170;  again  by  act  of  March  31,  1891,  statutes  1891,  p.  203;  and  again'by 
the  art  of  March  11,  1893,  statutes  1893,  p.  173. 

SEonox  25.  Taj  city  council  may,  in  its  discretion,  repair  and  water 
streets  that  shall  have  been  graded,  curbed  and  planked,  paved  or  macada- 
mized, and  may  build,  repair  and  clean  sewers,  and  shall  provide  a  street 
contingent  fund  at  the  same  time  and  in  the  same  manner  as  other  funds 
are  provided,  out  of  which  to  pay  the  costs  and  expenses  of  making  said 
repairs  and  watering  said  streets  and  building,  repairing  and  cleaning  said 
sewers ;  but  whenever  any  unaccepted  street  or  part  of  a  street  requires 
regrailing,  recurbing,  repiling,  repaying,  replanking,  regraveling  or 
remacadamizing  or  requires  new  culverts  or  new  crosswalks  or  new  side- 
walks or  new  stivers.,  the  work  shall  be  advertised  and  let  out  by  contract, 
and  the  costs  and  expenses  thereof  shall  be  assessed  upon  the  property 
affected  or  benefited  thereby,  the  same  as  in  the  first  instance.  [Statutes 
t886}  page  161.] 

[Section  25  of  the  act  has  never  been  amended.  See  notes  to  section  13 
of  this  act,  xitpru,  page  102  et  seq.  See  supra,  pages  6  and  7,  notes  to  section  2, 
of  the  act  upon  "regrading,"  "replanking,"  etc. 

Si:< TION  26.  The  city  council  may,  in  its  discretion,  order,  by  resolution, 
that  the  whole  or  any  part  of  the  cost  and  expenses  of  any  of  the  work 
mentioned  in  this  act  be  paid  out  of  the  treasury  of  the  municipality  from 
such  fund  as  the  council  may  designate.  Whenever  a  part  of  such  cost 
and  expenses  is  so  ordered  to  be  paid  the  superintendent  of  streets,  in 
making  up  the  assessment  heretofore  provided  for  such  cost  and  expenses, 
shall  first  deduct  from  the  whole  cost  and  expenses  such  part  thereof  as  has 
been  so  ordered  to  be  paid  out  of  the  mu.iicipal  treasury,  and  shall  assess  the 
remainder  of  said  cost  and  expanses  proportionately  upon  the  lots,  parts 
of  lots  and  lands  fronting  on  the  streets  where  said  work  was  done,  or 
liable  to  be  assessed  for  such  work,  and  in  the  manner  heretofore  pro- 
vided. [Amendment approved  March  31, 1891,  statutes  1891,  page  206.} 

[Section  20  was  amended  by  act  of  March  14,  1889,  statutes  18S9,  page 
170,  and  again  by  the  act  of  March  31,  1891,  statutes  1891,  page  206.] 

PART  II. 

SECTION  27.  Whenever  the  city  council  deem  it  necessary  to  construct  a 
sewer,  then  the  said  council  may,  in  its  discretion,  determine  to  construct 
sni«  I  sewer,  and  assess  the  cost  and  expenses  thereof  upon  the  property  to 
be  affected  or  benefited  thereby,  in  such  manner  and  within  such  assess- 
ment district  as  it  shall  prescribe,  and  the  lien  therefor  upon  said  property 
shall  be  the  same  as  is  provided  in  section  nine  of  this  act,  or  said  council 
may  determine  to  construct  said  sewer  and  pay  therefor  out  of  the  street 
contingent  fund.  [Statutes  1885,  page  162.} 

[Section  27  of  the  act  never  has  been  amended.] 

The  sections  embraced  in  Part  II  of  the  act, — sections  27 
to  33,  inclusive, — in  addition  to  the  ordinary  method  for  pay- 
ing the  expenses  of  the  work  authorized  by  the  act, — 
which  ordinary  method  is  by  assessment  according  to  the 


180    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

front-foot  plan, — provide  three  extraordinary  methods  for 
paying  the  expenses  of  sewer  construction,  viz:  (1.)  By 
assessing  the  cost  and  expenses  of  sewer  construction  upon 
the  property  to  be.affected  or  benefited  thereby,  and  in  such 
manner  and  within  such  assessment  district  as  the  council 
shall  prescribe;  or  (2.)  by  paying  the  cost  of  constructing 
the  sewer  out  of  the  street  contingent  fund;  or  (3.}  by 
incurring  an  indebtedness,  created  by  the  issuance  of 
bonds,  or  by-such  other  mode  as  the  council  shall,  by  ordi- 
nance provide. 

The  first  of  said  methods  for  paying  the  cost  of  sewer 
construction  is  provided  for  by  section  27  of  the  act.  The 
second  is  controlled  by  the  provisions  of  sections  27  and 
33.  And  the  third  method  of  paying  the  cost  of  sewer  con- 
struction— namely,  by  the  incurring  of  an  indebtedness — is 
controlled  by  sections  28  to  33,  inclusive. 

The  practical  utility  of  these  provisions  of  Part  II  of  the 
act  does  not  seem  to  be  very  apparent.  It  would  seem  at 
first  blush  to  be  a  specially  enabling  provision  applicable  to 
sewers  only.  But  all  three  modes  provided  by  Part  II  for 
meeting  the  expenses  of  sewer  construction  seem  to  be  pro- 
vided either  by  other  parts  of  the  act  or  by  an  independent 
act.  Thus,  as  to  the  two  modes  provided  for  by  section  27, — 
assessing  the  cost  and  expenses  upon  the  property  lying 
within  an  assessment  district,  or  paying  out  of  the  street- 
contingent  fund, — the  first  mode  (district  assessment  plan) 
is  amply  provided  for  by  section  3  of  the  act,  where  it  is 
provided  that,  for  the  work  of  constructing  sewers,  specifi- 
cations shall  always  be  furnished  to  the  council  b^  the  city 
engineer,  and  whenever  the  contemplated  work  or  improve- 
ment is,  in  the  opinion  of  the  city  council,  of  more  than 
local  or  ordinary  public  benefit,  etc.,  the  city  council  may 
make  the  expense  of  such  work  or  improvement  chargeable 
upon  a  district,  which  the  council  shall,  in  its  resolution  of 
intention,  declare  to  be  the  district  benefited  by  said  work 
or  improvement,  and  to  be  assessed  to  pay  the  costs  and 
expenses  thereof.  As  to  the  second  mode  provided  for  by 
section  27, — paying  the  costs  and  expenses  of  sewer  con- 
struction out  of  the  street  contingent  fund — section  26 
expressly  empowers  the  city  council  to  order  the  whole  or 
any  part  of  the  cost  and  expenses  of  any  of  the  work  men- 
tioned in  the  act  to  be  paid  out  of  the  treasury  of  the  munici- 
pality from  such  fund  as  the  council  may  designate. 

So  that  the  two  modes  of  meeting  the  expenses  which  are 
provided  for  by  section  27  of  the  act,  and  made  specially  appli- 
cable to  sewer  construction,  seem  to  be  amply  provided  for 
by  other  parts  of  the  act,  unless  it  be  held  that  it  was  the 


SEWER    ASSESSMENTS  BScW itS o        181 


intention  of  the  legislature  that  the  modes  provided  by  Part 

1  of    the  act,  for  meeting  the  expense  of    any   work,  do  not 
include  the  cost  of  sewer  construction,  and  that,  as  to  sewer 
construction,  the  modes  provided  by  Part  II  of   the  act  for 
paying  the  expenses  of   the  work  are  exclusive  of  all  others; 
that    is    to    say,  that    by  Part  II  of    the   act  the  legislature 
intended  to  limit  the  modes  for  paying  the  costs  and  expenses 
of    sewer  constiuction    to  the  three  modes  provided  for  by 
Part  II,  and    that  therefore,  as  to    sewer    construction,  the 
ordinary,  or    front-foot    mode  of  assessment,  is  not  applica- 
ble.    But,  tli is  cannot  have  been  the  intention  of  the  legis- 
lature, for  the  following  reasons: 

First:  Subdivision  one  of  section  7  provides  that  the 
expenses  incurred  for  any  work  authorized  by  this  act 
(except  the  cost  of  any  work  which  shall  have  been  declared 
in  the  resolution  of  intention  to  be  assessed  on  a  district 
benefited)  shall  be  assessed  upon  the  lots  and  lands  accord- 
ing to  the  front-foot  plan  of  assessment,  except  as  therein- 
after specifically  provided;  and  subdivision  2  of  said  section 
7  provides  that  the  expense  of  all  improvements  (except 
such  as  are  done  by  contractors  under  the  provisions  of  sec- 
tion 13  of  this  act,  i.  e.,  ''repairing"  or  "reconstructing" 
streets  out  of  repair  or  needing  reconstruction)  "shall  be 
assessed  upon  the  lots  and  lands,  as  provided  in  this  section, 
[Sec.  7]  according  to  the  nature  and  character  of  the  work." 
But,  aside  from  the  work  done  by  contractors  under  the 
provisions  of  section  13  of  the  act,  the  only  exception  to  the 
front-foot  plan  of  assessment  recognized  by  section  7  is  that 
provided  for  by  subdivision  12  of  the  section,  where,  carry- 
ing out  the  provisions  of  section  3,  which  authorize  the 
council  to  declare  an  assessment  district  wherever  the  con- 
templated work  or  improvement  is,  in  the  opinion  of  the 
council,  of  more  than  local  or  ordinary  public  benefit,  it  is 
provided  that  "whenever  the  resolution  of  intention  declares 
that  the  costs  and  expenses  of  the  work  and  improvement 
are  to  be  assessed  upon  a  district,  the  city  council  shall 
direct  the  city  engineer  to  make  a  diagram  of  the  property 
affected  or  benefited,"  etc.  But,  while  subdivision  12  of 
section  7  recognizes  the  fact  that  there  might  be  a  case 
where  the  expenses  shall  be  raised  by  assessing  the  property 
within  an  assessment  district,  and  supplies  the  appropriate 
machinery  for  levying  the  assessment,  when  that  mode  is 
adopted,  still  it  does  not  state  when  or  in  what  cases  the 
district  assessment  plan  shall  be  adopted,  while  subdivision 

2  of  section  7  provides  that,  with  the  exception  of  such  work 
as  is  done  bj  contractors  under  the  provisions  of  section  13, 
"the  expense  of  all  improvements  shall  be  assessed  upon  the 


182    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

lots  and  lands,  as  provided  in  this  section,  according  to  the 
nature  and  character  of  the  work,"  and  subdivision  1  pro- 
vides that  "the  expenses  incurred  for  any  work  authorized 
by  this  act  *  *  *  shall  be  assessed  upon  the  lots  and 
lands  fronting  thereon,  except  as  hereinafter  specifically  pro- 
vided; each  lot  or  portion  of  a  lot  being  separately  assessed, 
in  proportion  to  the  frontage,  at  a  rate  per  front  foot  suffi- 
cient to  cover  the  total  expense  of  the  work." 

The  only  exceptions  recognized  by  subdivision  one,  section 
seven,  to  the  ordinary,  or  front-foot  mode  of  assessment, 
are:  (1.)  Where  the  work  is  done  in.  such  portion  of  any 
street  as  is  required  by  law  to  be  kept  in  order  or  repair  by 
any  person  or  company  having  railroad  tracks  thereon; 
(see  supra  pp.  67-69);  (2.)  where  the  cost  of  the  work  has 
been  declared  in  the  resolution  of  intention  to  be  assessed  on  a 
district  benefited — as  provided  for  by  section  3  of  the  act: 
and  (3.)  where  any  exception  to  the  front-foot  mode  of 
assessment  is  elsewhere  in  section  seven  " specifically  pro- 
vided." The  phrase  "except  as  hereinafter  specifically  pro- 
vided," as  used  in  subdivision  1  of  section  7,  must  mean 
"except  as  hereinafter  in  this  section  (section  7)  specifically 
provided,"  since  subdivision  2  of  section  7  provides  that 
"the  expense  of  all  improvements,  except  such  as  are 
done  by  contractors  under  the  provisions  of  section  13  of 
this  act  *  *  *  shall  be  assessed  upon  the  lots  and 
lands  as  provided  in  this  section,  according  to  the  nature  and 
character  of  the  work." 

Second:  Section  3  and  subdivision  8  of  section  7,  at 
least  countenance  the  adoption  of  the  front-foot  mode  of 
assessment  in  connection  with  sewer  construction,  and 
thus  show  that  the  act  contemplates  that  the  expenses  of 
sewer  construction  may  be  provided  for  according  to  the 
front-foot,  or  ordinary  and  usual  plan  provided  by  the  act 
for  all  street  work,  as  well  as  by  either  of  the  extraordinary 
modes  provided  by  Part  II  of  the  act.  Section  3  provides 
that  the  owners  of  a  majority  of  the  frontage  of  the  prop- 
erty fronting  on  any  proposed  work  or  improvement,  where 
the  same  is  for  one  block  or  more,  may  make  a  written 
objection  to  the  same  within  ten  days  after  the  expiration 
of  the  time  of  the  publication  and  posting  of  the  notice  of 
the  passage  of  the  resolution  of  intention,  arid  that  such 
objections — except  as  to  sewers  and  other  expressly 
excepted  work — shall  be  a  bar  for  six  months  to  any 
further  proceedings  in  relation  to  the  doing  of  said  work  or 
making  such  improvements.  But  as  to  sewers  it  is  provided 
tint  "when  the  work  or  improvement  proposed  to  be 
done  is  the  constructions  of  sewers  *  *  *  and  the 


SEWER    ASSESSMENTS  Maroh'is  15*  °f       183 


objection  thereto  is  signed  by.  the  owners  of  a  majority  of 
the  frontage  liable  to  be  assessed  for  the  expense  of  said 
work,  as  aforesaid,  the  city  council  shall  at  its  next  meeting, 
fix  a  time  for  hearing  said  objections,  etc.,  and  its  decision 
shall  be  final  and  conclusive,  and  the  said  bar  for  six 
months  to  any  further  proceedings  shall  not  be  applicable 
thereto."  [See  also  section  24.]  And,  by  subdivision  8  of 
section  7,  it  is  provided  that  when  sewering  or  resewering 
is  ordered  to  be  done  under  the  sidewalk  on  only  one  side 
of  a  street  for  any  length  thereof,  the  assessment  for  its 
expenses  shall  be  made  only  upon  the  lots  and  lands 
fm/itriHj  nearest  upon  that  side  ,"  etc. 

As  to  the  third  mode  provided  by  Part  II  for  raising  the 
money  necessary  to  pay  the  cost  of  sewer  construction  —  incur- 
ring an  indebtedness  by  the  issuance  of  bonds  or  otherwise 
as  provided  by  the  council  —  this  mode  seems  to  be  fully 
covered  by  the  municipal  indebtedness  act  of  March  19, 
1880  (statutes  1SS<),  p.  :J99)  entitled  "An  act  authorizing  the 
incurring  of  indebtedness  by  cities,  towns  and  municipal 
corporations,  incorporated  under  the  laws  of  this  state,  for 
the  construction  of  waterworks,  sewers  and  all  necessary 
public  improvements,  or  for  any  purpose  whatever,  and  to 
repeal  an  act  approved  March  9,  1885,"  etc.,  and  the  several 
acts  amendatory  thereof.  See  infra  for  the  provisions  of 
tli  is  act  of  March  19,  1889,  as  amended  by  subsequent 
amendatory  acts.  This  municipal  indebtedness  act  pro- 
vides that  whenever  the  cost  of  any  sewers  will  be  too  great 
to  be  paid  out  of  the  ordinary  annual  income  and  revenue 
of  the  municipality,  the  city  council  may,  after  an  election 
authorizing  the  same,  issue  bonds  to  pay  the  cost  of  such 
work,  etc. 

In  view  of  the  foregoing,  and  especially  in  view  of  the 
fact  that  section  27  of  the  act  empowers  the  city  council 
to  adopt  the  district  assessment  plan  in  all  cases  of  sewer  con- 
struction, notwithstanding  the  fact  that  section  3  also  confers 
upon  the  council  the  option  to  adopt  the  district  assessment 
plan  if  it  deems  the  contemplated  work  or  improvement  to 
be  of  more  than  local  or  ordinary  public  benefit,  —  the 
question  might  very  pertinently  be  asked:  If  the  three 
extraordinary  modes  especially  provided  by  Part  II  of  the 
Vrooman  act  for  defraying  the  cost  and  expenses  of  sewer 
construction,  are  likewise  provided  by  other  parts  of  the 
act  —  in  conjunction  with  the  said  municipal  indebtedness  act 
of  March  19,  1889,—  and  if,  therefore,  Part  II  of  the  Vrooman 
act  is  of  no  practical  utility,  what  object  did  the  legislature 
have  in  view  when  it  enacted  this  part  of  the  statute?  This 
question  may  be  answered  as  follows: 


184    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

1st.  As  to  the  provision  of  section  27  to  the  effect  that 
the  council  may  pay  for  the  sewer  out  of  the  street  con- 
tingent fund,  it  is  difficult  to  perceive  what  object  the  legis- 
lature had  in  mind  when  enacting  this  provision,  since  it 
seems  to  be  amply  covered  by  section  26  of  the  act. 

2nd.  As  to  the  provision  of  section  27  empowering  the 
city  council  to  assess  the  cost  and  expense  of  constructing 
a  sewer  upon  an  assessment  district,  notwithstanding  the 
fact  that  section  3  empowers  the  council  to  do  the  same 
thing  whenever,  "in  its  opinion,  the  contemplated  work  or 
improvement  is  of  more  than  local  or  ordinary  public 
benefit."  If  this  provision  of  section  27  be  not  regarded  as 
affording  an  exclusive  mode  of  assessment  for  the  payment 
of  the  costs  of  sewer  construction — a  mode  exclusive  of 
the  ordinary  or  front-foot  mode  of  assessment — it  might 
appear  that  there  is  no  reason  for  this  provision  of  section 
27,  and  this  apparent  absence  of  all  reason  for  this  provis- 
ion of  section  27  might  lead  to  the  conclusion  that  it  was 
the  intention  of  the  legislature  that  the  modes  provided 
by  section  27  for  paying  the  expenses  of  sewer  construction 
should  exclude  all  other  modes,  as  held  by  the  Superior 
Court  of  Los  Angeles  county  in  White  v.  Harris.  [See 
supra,  page  35,  et  seq.]  But  the  reason  for  this  conclusion 
disappears,  and  the  apparent  absence  of  a  reason  for  the  pro- 
visions of  section  27  relative  to  assessment  districts  for 
sewer  work,  in  view  of  the  provisions  of  section  3  for 
assessment  districts  for  all  kinds  of  work,  "whenever  the 
contemplated  work  or  improvement,  in  the  opinion  of  the 
city  council,  is  of  more  than  local  or  ordinary  public 
benefit,"  is  easily  explained,  when  we  trace  the  history  of 
the  amendments  to  the  act  as  it  originally  stood  when 
approved  March  18,  1885.  As  the  act  originally  stood  there 
was  no  provision  empowering  the  city  council  to  adopt  the 
district  assessment  plan  whenever,  in  its  opinion,  the  con- 
templated work  or  improvement  was  of  more  than  local  or 
ordinary  public  benefit.  [See  statutes  of  1885,  page  147,  et 
seq.]  And,  as  a  sewer  is  very  frequently  a  work  or  improve- 
ment of  more  than  local  or  ordinary  public  benefit,  it 
was  advisable  to  insert  in  the  act  as  it  originally  stood 
before  the  amendments  of  1889  and  1891  some  provision,  such 
as  that  contained  in  Part  II,  enabling  the  council  to  adopt  the 
district  assessment  plan  in  the  case  of  sewer  construction, 
if,  in  its  discretion,  it  deemed  it  best  to  do  so.  Hence  the 
necessity  for  some  such  provision  as  that  contained  in  sec- 
tion 27,  although  that  necessity  has  been  removed  by  the 
amendments  to  section  3  made  by  the  amendatory  acts  of 
March  14,  1889  [statutes  1889,  page  158J  and  March  31, 


SEWER  ASSESSMENTS  Marches  "list  ACt  °f       185 

1891,  [statutes  1891,  page  1(J6,1  which  amendments  expressly 
empower  the  council  to  impose  the  burdens  upon  an  assess- 
ment district,  whenever,  in  its  opinion,  the  contemplated 
work  or  improvement  is  of  more  than  local  or  ordinary  public 
beneiit.  In  short,  since  the  Vrooinan  act  of  March  18, 1885, 
was  originally  enacted,  section  3  has  been  so  amended  that 
not  only  has  the  council  become  invested  with  all  the 
powers  originally  conferred  upon  it  by  Part  II  of  the  act, 
relative  to  sewer  construction,  but  these  powers  have 
been  extended  to  the  kinds  of  work,  and,  as  the  whole  is 
greater  than  a  part,  so  may  the  provisions  of  section  27, 
relative  to  sewer  construction  assessment  districts,  be  said  to 
have  been  included  in  and  superseded  by  the  provisions 
of  other  parts  of  the  act,  notably  by  section  3,  by  which 
larger  powers  have  been  vested  in  the  council  relative  to 
asst's-nicnt  districts. 

3rd.  As  to  the  provisions  of  Part  II  relative  to  incurring 
an  indebtedness  for  the  construction  of  sewers.  These  pro- 
visions were  inserted  in  the  act  when  it  was  first  passed,  and 
have  rein  lino. I  there  ever  since.  At  that  time  there  was  no 
general  act  authorizing  municipalities  to  incur  an  indebted- 
ness to  pay  the  cost  of  any  municipal  improvement  when 
such  improvements  required  a  greater  expenditure  than  the 
amount  allowed  therefor  by  the  annual  tax  levy.  And  as 
it  is  but  just  to  pay  the  cost  of  sewer  construction  out  of  the 
funds  of  the  city,  with  money  raised  by  a  general  tax  levy 
upon  all  the  property  within  the  city,  whenever  the  sewer 
to  be  constructed  is  a  whole  system  directly  benefiting  all 
parts  of  the  city,  it  is  obvious  that  the  provisions  of  Part  II 
of  the  Vrooinan  act,  in  this  respect,  were  necessary  to  the 
attainment  of  justice  at  the  time  when  the  act  became  a 
law, — March  18,  1885.  But  this  necessity  for.  these  provi- 
sions of  Part  II  has  been  removed  by  the  adoption  of  said 
general  municipal  indebtedness  act  of  March  19,  1889, 
authorizing  cities  and  towns  to  incur  indebtedness  to  pay 
the  cost  of  any  municipal  improvement  requiring  an  expen- 
diture greater  than  the  amount  allowed  for  such  improve- 
ment by  the  annual  tax  levy.  [Statutes  1889,  p.  399,] 
This  act  of  March  19,  1889,  expressly  repeals  all  general 
acts  or  special  acts,  or  parts  of  acts,  conflicting  with  it. 

SECTION  28.  If,  at  any  time,  the  city  council  shall  deem  it  necessary  to 
incur  any  indebtedness  for  the  construction  of  sewers,  in  excess  oi'  the 
money  in  the  street  contingent  fund  applicable  to  the  construction  of  such 
sewers,  they  shall  give  notice  of  a  special  election  by  the  qualified  electors 
of  the  city,  to  be  held  to  determine  whether  such  indebtedness  shall  be 
incurred.  Such  notice  shall  specify  the  amount  of  indebtedness  proposed 
to  be  incurred,  the  route  arid  general  character  of  the  sewer  or  sewers  to 


186    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

be  constructed,  and  the  amount  of  money  necessary  to  be  raised  annual1  y 
by  taxation  for  an  interest  and  sinking  fund  as  hereinafter  provided. 
Such  notice  shall  be  published  for  at  least  three  weeks  in  some  newspaper 
published  in  such  city,  and  no  other  question  or  matter  shall  be  submitted 
to  the  electors  at  such  election.  If,  upon  a  canvass  of  the  votes  cast  at 
such  election,  it  appear  that  not  less  than  two-thirds  of  all  the  qualified 
electors  voting  at  such  election  shall  have  voted  in  favor  of  incurring  such 
indebtedness,  it  shall  be  the  duty  of  the  city  council  to  pass  an  ordinance 
providing  for  the  mode  of  creating  such  indebtedness,  and  of  paying  the 
same;  and  in  such  ordinance  provision  shall  be  made  for  the  levy  and 
collection  of  an  annual  tax  upon  all  the  real  and  personal  property  subject 
to  taxation,  within  such  city,  sufficient  to  pay  the  interest  on  such  indebt- 
edness as  it  falls  due,  and  also  to  constitute  a  sinking  fund  for  the  payment 
of  the  principal  thereof,  within  a  period  of  not  more  than  twenty  jears 
from  the  time  of  contracting  the  same.  It  shall  be  the  duty  of  the  city 
council  in  each  year  thereafter,  at  the  time  when  other  taxes  are  levied, 
to  levy  a  tax  sufficient  for  such  purpose,  in  addition  to  the  taxes  author- 
ized to  be  levied  for  city  purposes.  Such  tax,  when  collected,  shall  be 
kept  in  the  treasury  as  a  separate  fund,  to  be  inviolably  appropriated  to 
the  payment  of  the  principal  and  interest  of  such  indebtedness.  [Statutes 
1885,  page  162.} 

[Section  28  has  never  been  amended.] 

See  notes  to  act  of  March  19,  1889,  [statutes  1889,  p.  399J 
as  amended,  infra. 

SECTION  29.  If  bonds  are  issued  under  the  provisions  of  the  last  section, 
said  bonds  shall  be  in  sums  of  not  less  than  one  hundred  dollars  nor  more 
than  one  thousand  dollars,  shall  be  signed  by  the  mayor  and  treasurer  of 
the  city,  and  the  seal  of  the  city  shall  be  affixed  thereto.  Coupons  for  the 
interest  shall  be  attached  to  each  bond,  signed  by  the  mayor  and  treasurer. 
Said  bonds  shall  bear  interest,  to  be  fixed  by  the  city  council,  at  the  rate 
of  not  to  exceed  five  per  cent,  per  annum.  [Statutes  1885,  page  163.] 

[Section  29  has  never  been  amended.] 

See  notes  to  section  27,  supra.  See  also  infra  act  of 
March  19,  1889,  [statutes  1889,  p.  399]  as  amended.  This 
act  of  March  19,  1889r  expressly  repeals  all  general  acts  or 
special  acts,  or  parts  of  acts  conflicting  with  it. 

SECTION  30.  Before  the  sale  of  said  bonds,  the  council  shall,  at  a  regular 
meeting  by  resolution,  declare  its  intention  to  sell  a  specified  amount  of 
said  bonds,  and  the  day  and  hour  of  such  sale,  and  shall  cause  such  resolu- 
tion to  be  entered  in  the  minutes,  and  shall  cause  notice  of  such  sale  to  be 
published  for  fifteen  days  in  at  least  one  newspaper  published  in  the  city 
in  which  the  bonds  are  issued  and  one  published  in  the  city  and 
county  of  San  Francisco,  and  in  any  other  newspaper  in  the  state,  at 
their  discretion.  The  notice  shall  state  that  sealed  proposals  will  be 
received  by  the  council  for  the  purchase  of  the  bonds  on  the  day  and  hour 
named  in  the  resolution.  The  council,  at  the  time  appointed,  shall  open 
the  proposals  and  award  thje  purchase  of  the  bonds  to  the  highest  bidder, 
but  may  reject  all  bids.  [Statutes  1885,  page  163.} 

[Section  30  has  never  been  amended.] 


SECTIONS    THIUTY-ONE-THIRTY-THREE      RhV^sg1  33'  A°t0f    187 


See  notes  to  section  27,  bupra.  See  also  infra  act  of 
March  19,  1889,  [statutes  1889,  p.  399]  as  amended.  This 
act  of  March  19,  1889,  expressly  repeals  all  general  acts  or 
special  acts,  or  parts  of  acts,  conflicting  with  it. 

SECTION'  31.  The  council  may  sell  said  bonds,  at  not  less  than  par  value, 
without  the  notice  provided  for  in  the  preceding  section.  [Statutes  1885, 
page  163.  \ 

[Section  31  has  never  been  amended.] 

See  notes  to  section  27,  supra.  See  also  infra  act  of 
March  19,  1889,  [statutes  1889,  p.  399]  as  amended.  This 
act  of  March  19,  1889,  expressly  repeals  all  general  acts  or 
special  acts,  or  parts  of  acts,  conflicting  with  it. 

SECTION  32.  The  proceeds  of  the  sale  of  the  bonds  shall  be  deposited  in 
the  city  treasury,  to  the  account  of  the  sewer  fund,  but  no  payment  there- 
from shall  be  made,  except  to  pay  for  the  construction  of  the  sewer  or 
SI-WITS  for  the  construction  of  which  the  bonds  were  issued,  and  upon  the 
ccrtiticate  of  the  superintendent  of  streets  and  the  city  engineer,  that  the 
work  has  been  done  according  to  the  contract  ;  provided,  that  after  the 
completion  of  the  sewers,  for  the  construction  of  which  said  bonds  were 
issued,  if  there  be  any  money  of  said  fund  left  in  the  treasury,  the  same 
may  be  transferred  to  the  general  fund,  for  general  purposes.  [Statutes 
1887,  page  148.} 

[Section  32  was  amended  by  act  of  March  15,  1887,  statutes  1887,  p.  148.  J 

See    notes    to    section    27,  supra.     See    also    infra  act  of 

March  19,  1889,  [statutes    1889,  p.  399]  as   amended.     This 

act  of  March  19,  1889,  expressly   repeals    all  general  ucts  or 

special  acts,  or  parts  of  acts,  conflicting  with  it. 

SECTION  33.  Whenever  said  council  shall  determine  to  construct  any 
sewer,  and  pay  therefor  out  of  the  street  contingent  fund,  or  by  the 
issuance  of  bonds,  as  above  provided,  then  said  council  shall  cause  to  be 
prepared  plans  and  specifications  of  said  work  in  sections,  and  shall  adver- 
tise for  twenty  days  in  at  least  one  newspaper  published  in  the  city  in 
which  the  sewer  is  to  be  constructed,  and  one  in  the  city  and  county  of  San 
Francisco,  for  sealed  proposals  for  constructing  said  sewer.  The  work 
may  be  let  in  sections,  and  must  be  awarded  to  the  lowest  responsible 
bidder,  the  council  having  the  right  to  reject  any  and  all  bids.  The  work 
shall  be  done  and  the  materials  furnished  under  the  supervision  and  to 
the  satisfaction  of  the  superintendent  of  streets  and  the  city  engineer. 
[Statutes  1885,  page  163.] 

[Section  33  has  never  been  amended.] 

See  notes  to  section  27,  surpa.  See  also  infra  act  of 
March  19,  1889,  [statutes  1889,  p.  399]  as  amended.  This 
act  of  March  19,  1889,  expressly  repeals  all  general  acts  or 
special  acts,  or  parts  of  acts,  conflicting  with  it. 


188          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

PART  ITT. 

SECTION  34.  First — The  city  engineer,  or  where  there  is  no  city  engineer, 
the  county,  or  city  and  county  surveyor,  shall  be  the  proper  officer  to 
do  the  surveying  and  other  engineering  work  necessary  to  be  done 
under  this  act,  and  to  survey  and  measure  the  work  to  be  done  under 
contracts  for  grading  and  macadamizing  streets,  and  to  estimate  the  costs 
and  expenses  thereof;  and  every  certificate  signed  by  him  in  his  official 
character  shall  be  prima  facie  evidence  in  all  courts  in  this  state  of  the 
truth  of  its  contents.  He  shall  also  keep  a  record  of  all  surveys  made 
under  the  provisions  of  this  act,  as  in  other  cases.  In  all  those  cities  where 
there  is  no  city  engineer,  the  city  council  thereof  is  hereby  authorized  and 
empowered  to  appoint  a  suitable  person  to  discharge  the  duties  herein  laid 
down  as  those  of  city  engineer,  and  all  the  provisions  hereof  applicable  to 
the  city  engineer  shall  apply  to  such  person  so  appointed.  Said  city 
council  is  hereby  empowered  to  fix  his  compensation  for  such  services. 

Second — The  words  "work,"  "improve,"  "improved,"  and  "improve- 
ment," as  used  in  this  act,  shall  include  all  work  mentioned  in  this  act, 
and  also  the  construction,  reconstruction,  and  repairs  of  all  or  any  portion 
of  said  work. 

Third— The  term  "incidental  expenses,"  as  used  in  this  act,  shall  include 
the  compensation  of  the  city  engineer  for  work  done  by  him  ;  also,  the  cost 
of  printing  and  advertising  as  provided  in  this  act,  and  not  otherwise;  also, 
the  compensation  of  the  person  appointed  by  the  superintendent  of  streets 
to  take  charge  of  and  superintend  any  of  the  work  mentioned  in  section 
thirty-five  of  this  act.  All  demands  for  incidental  expenses  mentioned  in 
this  sub-division  shall  be  presented  to  the  street  superintendent  by 
itemized  bill,  duly  verified  by  oath  of  the  demandant. 

Fourth— The  notices,  resolutions,  orders,  or  other  matter,  required  to  be 
published  by  the  provisions  of  this  act,  and  of  the  act  of  which  this  is 
amendatory,  shall  be  published  in  a  daily  newspaper,  in  cities  where  such 
there  is,  and  where  there  is  no  daily  newspaper,  in  a  semi-weekly  or  weekly 
newspaper,  to  be  designated  by  the  council  of  such  city,  as  often  as  the 
same  is  issued,  and  no  other  statute  shall  govern  or  be  applicable  to  the 
publications  herein  provided  for;  provided,  however,  that  only  in  case 
there  is  no  daily,  semi-weekly  or  weekly  newspaper  printed  or  circu- 
lated in  any  such  city,  then  such  notices,  resolutions,  orders,  or  other 
matters,  as  are  herein  required  to  be  published  in  a  newspaper,  shall  be 
posted  and  kept  posted  for  the  same  length  of  time  as  required  herein  for 
the  publication  of  the  same  in  a  daily,  semi-weekly,  or  weekly  newspaper, 
in  three  of  the  most  public  places  in  such  city.  Proof  of  the  publication 
or  posting  of  any  notice  provided  for  herein  shall  be  made  by  affidavit  of 
the  owner,  publisher,  or  clerk  of  the  newspaper,  or  of  the  poster  of  the 
notice.  No  publication  or  notice,  other  than  that  provided  for  in  this  act, 
shall  be  necessary  to  give  validity  to  any  of  the  proceedings  provided  for 
therein. 

Fifth — The  word  "municipality,"  and  the  word  "city,"  as  used  in  this 
act,  shall  be  understood  and  so  construed  as  to  include,  and  is  herebj' 
declared  to  include,  all  corporations  heretofore  organized  and  now  existing, 
and  those  hereafter  organized,  for  municipal  purposes. 

Sixth — The  words  "paved,"  or  "repaved,"  as  used  in  this  act,  shall  be 


SECTION    THIRTY-FOUR    OF    THE    ACT          March  sf  Snded       189 

held  to  mean  and  include  pavement of  stone,  whether  paving  blocks  or 
macadamizing,  or  of  bituminous  rock  or  asphalt,  or  of  iron,  wood,  or  other 
material,  whether  patented  or  not,  which  the  city  council  shall  by  ordi- 
nance adopt. 

Serenth—Tiw  word  ''street,"  as  used  in  this  act,  shall  be  deemed  to,  and 
is  hereby  de  -hired  to  include  avenues,  highways,  lanes,  alley,  crossings,  or 
intersections,  courts,  and  places,  and  the  term  "main  street"  means  such 
actually  opened  street  or  streets  as  hound  a  block;  the  word  "blocks," 
whether  regular  or  irregular,  shall  mean  such  blocks  as  are  bounded  by 
main  streets,  or  partially  by  a  boundary  line  of  the  city. 

/<:/7 ////>— -The  terms  "street  superintendent,"  and  "superintendent  of 
streets.1'  MS  used  in  this  act,  shall  be  understood,  and  so  construed  as  to 
taclud!^  and  are  hereby  declared  to  include  any  person  or  officer  whose 
duty  it  is,  under  the  law,  to  have  the  care  or  charge  of  the  streets,  or  the 
Improvement  thereof  in  any  city.  In  all  those  cities  where  there  is  no 
street  superintendent  or  superintendent  of  streets,  the  city  coun.nl  thereof 
is  hereby  authorized  and  empowered  to  appoint  a  suitable  person  to  dis- 
charge  the  duties  herein  laid  down,  as  those  of  street  superintendent  or 
superintendent  of  streets;  and  all  provisions  hereof  applicable  to  the  street 
superintendent  or  superintendent  of  streets,  shall  apply  to  such  person  so 
appointed. 

XinlJi — The  term  "city  council"  is  hereby  declared  to  include  any  body 
or  board  which,  under  the  law,  is  the  legislative  department  of  the  govern- 
ment of  any  city. 

Truth — In  municipalities  in  which  there  is  no  mayor,  then  the  duties 
imposed  upon  said  officer  by  the  provisions  of  this  act  shall  be  performed 
by  the  president  of  the  board  of  trustees,  or  other  chief  executive  officer 
of  the  municipality. 

Fh'i-fiillt — The  term  "clerk"  and  "city  clerk,"  as  used  in  this  act,  is 
hnvby  declared  to  include  any  person  or  officer  who  shall  be  clerk  of  the 
said  city  council. 

Tirt'lfth — The  term  "quarter  block,"  as  used  in  this  act  as  to  irregular 
blocks,  shall  be  deemed  to  include  all  lots  or  portions  of  lots  having  any 
frontage  on -either  intersecting  street  half  way  from  such  intersection  to  the 
next  main  street,  or  when  no  main  street  intervenes,  all  the  way  to  a 
boundary  line  of  the  city. 

Thirty nth—  The  term  "one  year,"  as  used  in  this  act,  shall  be  deemed  to 
include  the  time  beginning  with  January  first  and  ending  with  the  thirty- 
first  day  of  December  of  the  same  year. 

Fourteenth — References  in  certain  sections,  by  number,  to  certain  other 
sections  of  "this  act"  refer  to  the  number  of  the  sections  of  the  original 
act  as  heretofore  amended,  unless  it  appears  from  the  context  that  the  ref- 
erence is  to  the  section  of  this  amendatory  act,  when  it  shall  be  construed 
according  to  the  context.  [Amendment  approved  March  31,  1X91.  Statutes 
1891,  page  206.} 

[Section  34  was  amended  by  act  of  March  14,  1889,  statutes  1889,  page  157 
also  by  the  act  of  March  31,  1891,  statutes  1891,  page  206.] 

SECTION  35.  The  superintendent  of  streets  shall,  when  in  his  judgment 
it  is  necessary,  appoint  a  suitable  person  to  take  charge  of  and  superintend 
the  construction  and  improvement  of  each  and  every  sewer  constructed  or 
improved  under  the  provisions  of  this  act,  and  of  piling  and  capping,  side- 


190    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

walking,  or  of  the  paving  of  whatever  character  heretofore  mentioned,  in 
whole  or  in  part,  of  one  block  or  more,  whose  duty  it  shall  be  to  see  that 
the  contract  made  for  the  doing  of  said  work  is  strictly  fulfilled  in  every 
respect,  and  in  case  of  any  departure  therefrom  to  report  the  same  to  the 
superintendent  of  streets.  Such  person  shall  be  allowed  for  his  time  actu- 
ally employed  in  the  discharge  of  his  duties  such  compensation  as  shall  be 
just,  but  not  to  exceed  four  dollars  per  day.  The  sum  to  which  the  party 
so  employed  shall  be  entitled  shall  be  deemed  to  be  incidental  expenses, 
within  the  meaning  of  those  words  as  defined  by  this  act.  [Amendment 
approved  March  31,  1891,  statutes  1891,  page  208.] 

[The  act  of  March  14,  1889,  stacutes  '89,  p.  157,  attempted  to  amend  sec- 
tion 35,  and  section  35  as  amended  is  embraced  in  the  body  of  the  act, 
[statutes  '89,  p.  173,]  but  the  title  of  the  act  does  not  mention  this  section. 
The  section  was  amended  in  1891  by  the  act  of  March  31, 1891,  statutes  '91, 
p.  208.] 

SECTION  36.  The  act  entitled  "An  act  to  provide  for  the  improvement  of 
streets,  lanes,  alleys,  courts,  places,  and  sidewalks,  and  the  construction  of 
sewers  within  municipalities,"  approved  March  sixth,  eighteen  hundred 
and  eighty-three,  is  hereby  repealed ;  provided,  that  any  work  or  proceed- 
ings commenced  thereunder  prior  to  the  passage  of  this  act  shall  in  nowist' 
be  affected  hereby,  but  shall  in  all  respects  be  finished  and-  completed 
under  said  act  of  March  sixth,  eighteen  hundred  and  eighty-three, and  said 
repeal  shall  in  nowise  affect  said  work  or  proceedings.  [Statutes  '85,  p.  165.] 

[Section  36  has  never  been  amended.] 

SECTION  37.  That  said  act  shall  take  effect  and  be  in  force  immediately 
upon  its  passage,  and  all  acts  and  parts  of  acts  in  conflict  with  this  act  are 
hereby  repealed ;  and  provided,  however,  that  any  work  or  proceeding  of  the 
city  council  commenced  under  the  act  of  which  this  is  amendatory  shall  in 
nowise  be  affected  thereby,  but  shall  in  all  respects  be  finished  and  com- 
pleted thereunder.  [Amendment  approved  March  11, 1893,  statutes  1893,  page 
173.] 

[Section  37  was  amended  in  1889  by  the  act  of  March  14,  1889,  statutes 
'89,  p.  173;  again  in  1891  by  the  act  of  March  31, 1891,  statutes '91,  p.  209; 
and  again  in  1893  by  the  act  of  March  11,  1893,  statutes  '93,  p  173.] 

These  three  amendments  to  section  37  are  all  substan- 
tially the  same.  Section  3  of  the  said  act  of  March  11, 1893, 
[statutes  '93,  p.  173]  is  as  follows: 

"SEC.  3.  That  section  thirty-seven  of  said  act  [i.  e.,  the  act 
of  March  18,  1885]  is  hereby  amended  to  read  as  follows: 

"SECTION  37.  That  said  act,  [i.  e.,  the  act  of  March  18, 
1885,  entitled  "An  act  to  provide  for  work  upon  streets, 
lanes,  alleys,  courts,  places  and  sidewalks,  and  for  the  con- 
struction of  sewers  within  municipalities"]  shall  take  effect 
and  be  in  force  immediately  upon  its  passage,  and  all  acts 
and  parts  of  acts  in  conflict  with  this  act  are  hereby 
repealed;  and  provided,  however,  that  any  work  or  proceed- 
ing of  the  city  council  commenced  under  the  act  of  which 
this  is  amendatory  shall  in  nowise  be  affected  thereby,  but 


SECTIONS  THIRTY-SEVEN-THIRTY-ETGHT       Sees.  36.  37  38, 

OI  tnc  Act, 

shall    in    all    respects   be  finished   and   completed  thereun- 
der." 

This  is  a  palpable  absurdity.  It  is  evident  that  it  was 
the  intention  of  the  legislature  to  provide  by  section  3  of 
the  said  amendatory  act  of  March  11,  1893,  amending  cer- 
tain sections  of  the  act  of  March  18,  1885,  that  it — the 
amendatory  act  of  March  11,  1893 — should  take  effect  and 
be  in  force  from  and  after  its  passage,  etc.,  and  not  that  the 
original  act  of  March  18,  1885,  should  take  effect  and  be  in 
force  from  and  after  its  passage,  since  the  original  section 
37  of  the  act  of  Mrrch  18,1885,  [statutes  '85,  p.  165]  already- 
provided  that  said  act  of  March  18,  1885,  should  take  effect 
and  be  in  force  from  and  after  its  passage.  Further- 
more, the  original  act — the  act  of  March  18,  1885 — was  not 
amendatory  of  any  act.  It  expressly  repealed  the  first 
Vrooman  act — the  Vrooman  act  of  March  6,1883 — and  pro- 
vided that  any  work  or  proceedings  commenced  under  said 
act  of  March  0,  1883,  prior  to  its  own  passage,  shall  in 
nowise  be  affected,  etc.  [See  section  36  of  the  act  of  March 
IS,  !SSf> — section  36,  supra.]  Section  3  of  the  act  of  March 
11,  1893,  should  have  read,  "This  act  shall  take  effect,"  etc., 
instead  of  incorporating  these  provisions  into  section  37  of 
tin-  act  of  March  18,1885.  But  this  is  only  one  of  the  many 
stupid  blunders  that  have  been  made  in  amending  this 
street  improvement  act  of  March  18,  1885.  The  amenda- 
tory acts,  next  to  be  considered,  by  which  certain  sections 
were  added  to  the  act  of  March  18, 1885,  are  still  more  preg- 
nant with  blunders;  and,  while  it  is  possible  that  the  courts, 
by  a  process  of  construction,  will  so  construe  the  act,  with 
its  amendments,  as  to  give  effect  to  wrhat  was  obviously  the 
legislative  intent,  yet  in  doing  so  .they  \vill  have  to  give  to 
the  language  of  these  amendatory  acts  a  meaning  that  they 
do  not  bear  when  read  literally.  [See  the  notes  to  next  sec- 
tion— section  38. J 

SECTION  38.  The  city  council  is  hereby  empowered  to  change  or  modify 
tne  grade  of  any  public  street,  lane,  alley,  place,  or  court,  and  to  regrade  or 
rcpavi-  the  same,  so  as  to  conlorm  to  such  modified  grade,  in  the  manner  as 
hereinafter  provided.  Before  any  change  of  grade  is  ordered  the  city  coun- 
cil shall  pass  an  ordinance  or  resolution  of  intention  to  make  such  change 
or  modification  of  grade,  and  it  shall  have  power  at  the  same  time  and  in 
the  same  ordinance  or  resolution  to  provide  for  the  actual  cost  of  perform- 
ing the  work  of  regrading,  repaying,  sewering,  sidewalking,  or  curbing  of 
Baid  street  or  portion  of  street,  with  the  same  or  other  material  with  wrhich 
it  was  formerly  graded,  paved,  sewered,  sidewalked  or  curbed ;  and  that  the 
cost  of  the  same  shall  also  be  assessed  upon  the  same  district  which  is 
declared  to  be  benefited  by  such  changed  or  modified  grade.  One  or  more 
streets  or  blocks  of  streets  may  be  embraced  in  the  same  ordinance  or  reso- 


192    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

lution.  Such  ordinance  or  resolution  shall  be  published  in  the  newspaper 
in  which  the  official  notices  of  the  city  council  are  usually  printed  and  pub- 
lished; and  such  newspaper  is  to  be  designated  in  such  ordinance  or  reso- 
lution. Such  publication  shall  be  made  in  every  regular  issue  of  such  paper 
for  not  less  than  ten  days,  and  shall  describe  the  proposed  change  or  mod- 
ification of  grade  or  regrading,  and  shall  designate  and  establish  the  district 
to  be  benefited  by  such  change  or  modification  of  grade  or  regrading,  and 
to  be  assessed  for  the  cost  of  the  same.  Within  five  days  after  the  first 
publication  of  the  ordinance  or  resolution  of  intention,  the  superintendent 
of  streets  shall  cause  to  be  conspicuously  posted  within  the  district  desig* 
nated  in  the  ordinance  or  resolution,  notice  of  the  passage  of  said  resolution . 
Said  notices  shall  be  the  same  in  all  requirements  of  contents  and  posting 
as  the  "notices  of  street  work"  provided  for  in  section  three  of  the  original 
act  to  which  this  is  amendatory.  If  no  objection  to  said  proposed  change 
or  changes,  or  modifications  of  grade,  shall  be  filed  with  the  clerk  of  the 
council  within  thirty  days  from  the  first  publication  of  the  ordinance  or 
resolution  of  intention  hereinbefore  mentioned,  the  city  council  shall  have 
power  to  declare  such  grades  to  be  changed  and  established  in  conformity 
to  said  ordinance  or  resolution,  provided,  that  no  change  of  an  established 
grade  shall  be  ordered  except  on  petition  of  the  owners  of  a  majority  of  the 
property  affected  by  the  proposed  change  of  grade.  [Amendment  approved 
March  9,  1893,  statutes  '93,  p.  89.] 

The  remaining  sections  of  the  act,  sixteen  in  number — 
sections  38  to  53  inclusive — were  added  by  the  act  of  March 
31,1891.  [Statutes '91,  p.  461.1  In  1893,  by  an  act  approved 
March  9,1893,  the  legislature  amended  each  of  these  sixteen 
new  sections  [statutes  '93,  p.  89]  by  an  act  entitled,  "An  act 
to  amend  sections  thirty-eight  to  fifty  three,  inclusive,  of  an 
act  approved  March  31,  1891,  adding  those  sections  to  'An 
act  to  provide  for  work  upon  streets,  alleys,  lanes,  courts, 
places,  and  sidewalks,  and  for  the  construction  of  sewers 
within  municipalities/  approved  March  18,  1885." 

These  sixteen  new  sections,  thus  added  to  the  original 
act,  the  act  of  March  18,  1885,  are  intended  to  provide  the 
machinery  for  changing  the  grades  of  streets  in  all  cases 
where  the  official  grade  has  once  been  established.  They 
also  make  provision  for  performing  the  work  of  grading  to 
the  newly  established  grade  in  the  same  proceedings  in 
which  the  grade  is  changed  or  newly  established.  The  lirst 
sentence  of  section  38  proclaims  the  scope  and  object  of  the 
act.  It  is:  "The  city  council  is  hereby  empowered  to  change 
or  modify  the  grade  of  any  public  street,  lane,  alley,  place  or 
court,  and  to  regrade  or  repave  the  same,  so  as  to  conform 
to  such  modified  grade,  in  the  manner  as  hereinafter  pro- 
vided." 

The  act  of  March  31,  1891,  by  which  these  sections  were 
first  added  to  the  original  act  of  March  18,  1885,  did  not 
make  provision  for  performing  the  work  of  grading  or 
regrading  to  the  grade  as  established  by  the  proceedings  to 


THE    SIXTEEN    NEW    SECTIONS  Jg^J gfi8^en<  193 

change  the  grade,  but  simply  made  provision  for  changing 
or  modifying  the  grade  of  any  street,  leaving  the  subsequent 
proceedings  to  grade  to  the  newly  established  grade  to  be 
regulated  by  the  prior  sections  of  the  act. 

By  section  2  of  the  Vroornan  act  of  March  18,  1885,  as 
amended  in  1893  [statutes  '93  p.  172,]  it  is  provided  that 
"whenever  the  grade  of  a  street,  avenue,  lane,  alley, 
court,  or  place  shall  hereafter  be  changed,  the  petition  of 
the  owners  of  a  majority  of  the  feet  fronting  thereon,  asking 
for  grading  the  same  to  the  new  grade,  shall  be  a  condition 
precedent  to  the  ordering  of  such  grading  to  be  done," 
[supra  p.  6]  and  by  sections  38  et  seq.,  as  amended  in 
1893,  provision  is  made  for  thus  changing  a  grade 
and  establishing  a  new  one,  and  it  is  provided, — sec- 
tion 38 — that  "no  change  of  an  established  grade  shall  be 
ordered  except  on  petition  of  the  owners  of  a  majority  of 
the  property  affected  by  the  proposed  change  of  grade." 
Section  2  provides  for  a  petition  to  grade  a  street  after  a 
new  grade  has  been  established.  Section  38  provides  for  a 
petition  to  establish  a  new  grade  changing  or  modifying 
the  old  one.  In  Kepple  v.  City  of  Keokuk,  2  Am.  Eng. 
Corp.  Cases  446,  it  is  said:  "The  establishment  of  a  grade 
means  the  passing  of  an  ordinance  or  other  legislative 
action  of  the  council  of  the  city,  prescribing  and  fixing 
grade  lines  to  which  the  surface  shall  be  brought  when  the 
streets  shall  be  improved."  Section  38  of  the  act  pro- 
vides that  where  a  grade,  once  established,  is  to  be  changed 
or  modified,  by  refixing  the  grade  lines,  there  shall  first  be 
filed  or  presented  "the  petition  of  the  owners  of  a  majority 
of  the  property  affected  by  the  proposed  change  of  grade." 
Section  2  provides  that  where  the  surface  is  to 
be  brought  to  the  grade  lines,  as  the  same  have 
been  changed  and  established  under  the  provisions  of 
sections  38  et  seq., — unless  in  the  proceedings  to  change 
the  grade,  proceedings  to  grade  the  surface  to  the  new 
grade  lines  have  also  been  included — there  shall  first  be 
filed  or  presented  "the  petition  of  the  owners  of  a  majority 
of  the  feet  fronting  thereon."  In  the  former  case,  *'.  e.,  in  pro- 
ceedings under  section  38  to  change  an  old  grade  and  estab- 
lish new  grade  lines,  the  petition  is  required  to  be  by  "the 
owners  of  a  majority  of  the  property  affected  by  the  pro- 
posed change  of  grade."  In  the  latter  case,  i.  e.,  in  pro- 
ceedings to  grade  a  street  after  the  official  grade  has  been 
changed  or  altered,  the  petition  required  by  section  2 
in  such  case  is  required  to  be  by  "the  owners  of  a  majority 
of  the  feet  fronting"  on  the  street  to  be  graded.  The  reason 
for  this  difference  is,  that,  in  proceedings  to  change  the 


OP  THE 
/  TT  "NT  T  VERSITX    j 


194    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

grade  of  a  street,— i.  e.,  in  proceedings  under  sections  38, 
et  seq.,  to  establish  new  grade  lines,  to  which  the  surface 
shall  be  brought  when  the  streets  shall  be  graded  to  the 
new  grade,  or  otherwise  improved — the  costs  and  expenses 
are  to  be  charged  upon  and  assessed  against  the  lands  lying 
within  a  district  declared  by  the  resolution  of  intention  to  be 
the  lands  benefited  by  such  changed  or  modified  grade. 
Whereas,  in  proceedings  under  prior  sections  of  the  act, — 
sections  3  to  10 — to  grade  a  street  to  a  new  grade  line, 
changed  and  established  after  the  same  has  once  been 
established,  the  costs  and  expenses  are  ordinarily  to  be 
charged  against  and  assessed  upon  the  lots -and  lands 
fronting  thereon  as  provided  by  section  7  of  the  act. 

Section  38  provides  that,  in  proceedings  thereunder,  to 
change  or  modify  a  grade,  "no  change  of  an  established 
grade  shall  be  ordered,  except  on  petition  of  the  owners  of 
a  majority  of  the  property  affected  by  the  proposed  change 
of  grade."  This  provision,  if  construed  to  mean  that  such 
petition  shall  precede  all  action  by  the  council, — shall  pre- 
cede, for  exam  pie,  the  passage  of  the  resolution  or  ordinance 
of  intention  declaring  the  district  to  be  benefited  by  the 
changed  or  modified  grade — might  defeat  the  whole  of  this 
part  of  the  act.  For,  until  the  ordinance  or  resolution  of 
intention  is  passed,  declaring  the  district  to  be  benefited,  it 
can  not  be  known  what  lands  will  be  affected  by  the  pro- 
posed change  of  grade, — assuming  that  the  word  "affected" 
applies  to  the  lots  which  will  be  benefited  by  the  proposed 
change  of  grade,  and  therefore  liable  to  be  assessed  to  pay 
the  damages  resulting  from  the  change  or  modification  of 
the  grade — further  than  that  all  lots  in  the  city,  by  being 
liable  to  be  included  in  the  district,  are,  in  this  sense, 
affected  by  any  proposed  change  of  the  grade.  Therefore, 
if  the  petition  required  by  section  38,  be  a  condition  pre- 
requisite to  jurisdiction  in  the  council  to  pass  an  ordinance  or 
resolution  of  intention  to  change  the  grade,  or  to  take  any 
steps  to  change  the  grade  of  a  street,  there  would  seem  to  be 
such  an  element  of  uncertainty  as  to  defeat  any  proceeding 
under  these  new  and  added  sections  of  the  act.  [See 
Montgomery  Avenue  case,  54  Gal.  579.] 

Section  38  provides  that  "before  any  change  of  grade  is 
ordered  the  city  council  shall  pass  an  ordinance  or  resolu- 
tion of  intention  to  make  such  change  or  modification  of 
grade,  *  *  *  and  that  the  cost  of  the  same  shall  also 
be  assessed  upon  the  same  district  which  is  declared  to  be 
benefited  by  such  changed  or  modified  grade."  This  lan- 
guage does  not  expressly  empower  the  council  to  establish 
or  define  the  assessment  district.  However,  it  is  followed 


THE    SIXTEEN    NEW    SECTIONS  8^9*38*^    195 

by  a  provision  that  the  ordinance  or  resolution  shall  be 
published  and  that  "such  publication  shall  *  *  *  des- 
ignate and  establish  the  district  to  be  benefited  by  such 
change  or  modification  of  grade  or  regradiiig,  and  to  be 
assessed  for  the  cost  of  the  same."  Since  it  is  the  resolu- 
tion or  ordinance  of  intention  that  is  to  be  published,  and 
since  it  is  the  publication  that  is  to  "establish"  the  district, 
these  provisions,  taken  together,  may  possibly  be  construed 
as  tantamount  to  a  provision  that  the  council,  by  and 
through  its  resolution  of  intention  and  the  publication 
thereof,  shall  establish  the  district  to  be  assessed.  Nor 
does  there  seem  to  be  any  provision  in  this  or  the  succeed- 
ing sections  of  the  act  directly  providing  for  an  opportunity 
to  property  owners  to  object  to  the  extent  of  the  district, 
after  a  notice,  or  for  a  hearing  thereon.  However,  it  seems 
to  have  been  the  intention  of  the  legislature  to  provide  by 
section  52  of  the  act  that  all  the  provisions  contained  in 
the  first  thirty-seven  sections  of  the  act,  as  amended  since 
their  original  passage  and  approval,  March  18,  1885,  should 
apply  to  all  matters  contained  in  sections  38  to  52,  inclu- 
sive, so  far  as  they  are  not  in  conflict.  If  this  be  so,  it  is 
probable  that  the  provisions  of  section  3  of  the  act,  pro- 
viding for  an  opportunity  for  filing  objections  to  the  extent 
of  the  district,  etc.,  might  be  applicable.  [See  infra,  sec- 
tion 52;  also  see  section  3,  supra,  page  10.]  And  it  is  pos- 
sible that  section  38  might  be  construed  as  providing  that 
the  council  shall,  in  the  first  instance,  establish  the  district 
to  be  benefited  and  assessed,  and  that  the  petition  from  the 
owners  of  a  majority  of  the  property  affected  shall  be  filed 
after  the  establishment  of  the  district  and  before  the 
change  of  grade  is  ordered.  If  the  section  be  capable  of 
this  construction,  it  is  possible  that  sections  38,  et  seq.,  may 
be  constitutional — even  though  by  the  expression,  "prop- 
erty affected,"  is  meant  the  property  benefited  by  the  pro- 
posed change  of  grade,  and,  therefore,  liable  to  be 
assessed  to  pay  the  expenses  of  the  change,  as  well  as  the 
property  fronting  upon  the  street,  and,  therefore,  directly 
affected  by  the  proposed  change  of  grade.  But,  if  the 
phrase,  "petition  of  the  owners  of  a  majority  of  the  prop- 
erty affected  by  the  proposed  change  of  grade,"  be  con- 
strued to  mean  a  "petition  of  the  owners  of  a  majority  of 
the  property  benefited  by  the  proposed  change  of  grade,  and, 
therefore,  liable  to  be  assessed  therefor,  as  well  as  the  prop- 
erty fronting  on  the  proposed  change  of  grade" — and  the 
property  benefited,  and,  therefore,  liable  to  be  assessed,  is 
"affected"  by  the  proposed  change  of  grade,  as  well  as  that 
fronting  thereon, — then,  if  such  petition  must  be  filed 


196         STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

before  the  council  acquires  jurisdiction  to  pass  the  ordi- 
nance or  resolution  of  intention,  and  if  the  council  must 
declare  to  be  benefited  the  lands  in  the  district  described  in 
such  petition,  these  sections  of  the  act  [sections  38  to  52, 
inclusive,]  would  seem  to  be  unconstitutional  for  the  reason 
stated  in  Moulton  v.  Parks,  64  Cal.  182-4.  It  was  held  in 
this  case  of  Moulton  v.  Parks  that  the  act  of  March  25, 
1868,  [statutes  1867-8,  page  316,] — an  act  to  provide  for  the 
protection  of  certain  lands  in  the  county  of  Sutter  from 
overflow  by  the  erection  of  levee  districts, — was  unconsti- 
tutional. "Section  21  of  the  act  [statutes  1867-8,  page  321,] 
provided  that  "whenever  a  petition  shall  be  received  by 
said  board  of  supervisors  from  persons  in  possession  of 
more  than  one-half  of  the  acres  of  any  specified  portion  of 
said  county  asking  to  be  set  apart  and  erected  into  a  levee 
district,  said  board  shall  at  once  erect  such  territory  into  a 
levee  district,  and  place  it  under  the  provisions  of  this  act, 
to  be  called  Levee  District  No.  1,  2,  3,  and  so  on,  as  the  case 
may  be;  provided,  that  it  shall  not  be  required  to  submit  the 
question  of  tax  to  a  vote  of  the  people  of  any  district  so 
erected."  It  was  held  that  this  was  an  attempt  to  transfer 
to  persons  in  possession  of  more  than  one-half  of  the  acres 
of  any  portion  of  the  county  of  Sutter  which  they  may 
specify,  the  power  to  declare  that  such  portion  of  the  county 
will  be  benefited  by  works  erected  at  the  expense  of  all  the 
property,  real  and  personal,  within  it,  and  to  set  in  motion 
machinery  for  the  enforcement  of  a  tax  and  assessment 
against  the  owners  of  a  minority  of  the  acreage,  and  that 
therefore  the  act  was  unconstitutional.  The  court,  in  this 
connection,  quoted  from  Mr.  Justice  Cooley  on  Taxation, 
449,  as  follows:  "  The  district  within  which  the  tax  shall 
be  laid  may  be  determined  in  either  of  two  modes;  (1.)  the 
legislative  authority  either  of  the  state  or,  when  properly 
organized,  of  the  municipality,  may  determine  over  what 
territory  the  benefits  are  so  far  diffused  as  to  render  it 
proper  to  make  all  lands  contribute  to  the  cost,  or  (2.)  the 
assessors  or  commissioners  who,  under  the  law,  are  to  make 
the  assessment,  may  have  the  whole  matter  submitted  to 
their  judgment,  to  assess  such  lands  as  in  their  opinion  are 
specially  benefited,  and  ought  therefore  to  contribute 
to  the  cost  of  the  work."  It  was  held  that  as 
the  act  in  question  did  not  provide  for  the  crea- 
tion of  an  assessment  district,  in  either  of  the  said 
two  modes  pointed  out  by  Mr.  Justice  Cooley,  but  imposed 
upon  the  board  of  supervisors  the  duty  to  erect  the  territory 
described  in  the  petition  into  a  levee  district,  without  con- 
ferring upon  them  any  discretion  to  reject  the  petition,  or 


THE    SIXTEEN    NEW    SECTIONS  '  »»      ended 


to  modify  or  change  the  boundaries  of  the  district,  or  other- 
wise to  exercise  any  judgment  with  reference  to  the  expedi- 
ency of  fixing  the  limits  of  the  assessment  district  where 
the  petition  fixes  them,  the  act  was,  therefore,  unconstitu- 
tional and  void. 

It  is  stated  supra  that  said  sections  38  to  52,  inclusive,  of 
the  Vrooman  act,  providing  the  machinery  for  changing 
grades  that  have  been  once  established,  might  be  unconsti- 
tutional for  the  reasons  given  in  the  case  of  Moulton  v. 
Parks,  but  to  bring  the  sections  in  question  within  the  rea- 
sons given  in  Moulton  v.  Parks,  two  postulates  must  be  assum- 
ed, viz:  (1.)  It  must  be  assumed  that  it  was  the  intention  of 
the  legislature  to  provide  by  the  last  clause  of  section  38, 
that  the  petition  there  referred  to  should  precede  any  step 
taken  by  the  council,  —  should  precede  the  resolution  of 
intention;  and  (2.)  It  must  be  assumed  that  the  phrase 
"petition  of  the  owners  of  a  majority  of  the  property  affected 
by  the  proposed  change  of  grade,"  means  a  "petition  of  the 
owners  of  a  majority  of  the  property  liable  to  be  assessed  to 
pay  the  expenses  of  changing  the  grade,  as  well  as  the 
property  fronting  upon  the  proposed  new  or  modified 
grade."  As  to  the  first  assumption,  it  would  seem  by 
analogy  to  similar  provisions  in  other  acts,  that  it  was  the 
intention  of  the  legislation  that  the  petition  should  be  a 
condition  precedent  to  the  passage  of  the  ordinance  or  reso- 
lution of  intention.  [See  Turrill  v.  Grattan,  52  Gal.  97; 
Dyer  v.  Miller,  58  Cal.  585;  Gately  v.  Leviston,  63  Cal.  365.] 
As  to  the  second  assumption,  there  can  be  no  question  but 
that  the  property  which  will  be  benefited  by  the  proposed 
change  of  grade,  and  which  will  therefore  become  charge- 
able with  the  expenses  thereof,  will  be  "affected"  by  the  pro- 
posed change  of  grade.  It  is  affected  in  two  respects,  viz:  (1.) 
Because  it  will  be  benefited  by  the  proposed  change;  and 
(2.)  Because  it  will  have  to  bear  a  portion  of  the  burden  of 
the  expenses  attending  the  change  of  grade.  The  property 
owners  whose  property  fronts  on  streets,  the  grade  of  which 
it  is  proposed  to  change,  are  entitled  to  recover  damages 
resulting  therefrom.  These  damages  constitute  apart  of  the 
cost  of  the  change,  and  lands  not  fronting  upon  such  streets 
may  be  benefited  by  the  proposed  change,  and  therefore  liable 
to  be  assessed  to  pay  a  portion  of  the  costs,  even  though  the 
owners  thereof  are  not  entitled  to  any  damages.  Therefore 
property  may  be  "affected"  by  the  proposed  change  of  grade 
in  at  least  two  ways:  (1.)  It  may  be  directly  "affected" 
thereby  because  fronting  on  the  streets,  the  grade  of  which 
it  is  proposed  to  change,  or  (2.)  It  may  be  benefited  by 
the  proposed  change  of  grade,  and  therefore  liable  to  be 


198          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

assessed  to  pay  a  portion  of  the  expenses,  and  therefore, 
indirectly  affected  by  the  proposed  change  of  grade,  even 
though  it  does  not  front  upon  the  street  in  question.  It  is 
possible  therefore,  that,  in  order  to  uphold  the  constitu- 
tionality of  these  sections  of  the  act,  the  courts  may  hold 
that  the  last  clause  of  section  38  only  requires  a  petition 
from  a  majority  of  the  owners  of  property  fronting  upon 
the  street  or  streets  the  grade  or  grades  of  which  it  is  pro- 
posed to  change — property  which  may  be  said  to  be  directly 
affected  by  the  proposed  change  of  grade,  in  the  sense  that 
the  change  in  the  grade  lines,  and  the  subsequent  grading 
of  the  street  to  the  new  lines,  will  directly  affect  ingress 
and  egress  to  and  from  the  property  fronting  upon  the 
street,  the  grade  of  which  it  is  proposed  to  clumge.  Such 
a  construction  would  make  it  certain  who  the  owners  are  by 
whom  the  petition  should  be  filed  and  thus  avoid  the 
defect  which  existed  in  the  act  held  to  be  unconstitutional  in 
Montgomery  A\enue  Case,  54  Cal.  579,  and  would  like- 
wise leave  the  matter  of  fixing  the  extent  of  the  assessment 
district  wholly  to  the  council,  and  thus  avoid  the  defect 
which  the  Supreme  Court  in  Moulton  v.  Parks  held 
rendered  the  act  there  in  question  unconstitutional  and 
void.  Furthermore,  in  response  to  the  objection  which 
existed  in  Moulton  v.  Parks,  it  may  be  said,  that  while  in 
that  case  the  board  of  supervisors  had  no  discretion  to 
reject  the  petition,  it  does  not  appear  but  that  the  council 
may  reject  the  petition  required  by  section  38  of  the 
Vrooman  act,  and  it  is  possible  therefore  that  by  proceed- 
ing in  accordance  with  the  request  of -the  petitioners,  this 
may  be  tantamount  to  an  exercise  by  the  council  of 
its  judgment  upon  the  question  as  to  whether  or  not 
the  lands  will  be  affected  which  the  petitioners  in  effect 
declare  will  be  affected  by  the  change  of  grade,  and 
thus  in  this  indirect  manner,  it  is  possible  that  the 
council  may  determine  over  what  territory  the  benefits  are 
so  far  diffused  as  to  render  it  proper  to  make  all  lands 
therein  contribute  to  the  cost.  However,  as  has  been 
stated  before,  it  is  not  the  purpose  of  this  book  to 
attempt  to  determine  the  questions  of  constitutional  law 
which  may  arise  under  the  provisions  of  these  street 
improvement  acts,  nor  even  to  go  into  an  extended  dis- 
cussion of  such  question,  but  rather  to  suggest  to  the  reader 
such  possible  questions  of  the  constitutionality  of  these 
provisions  as  have  suggested  themselves  to  the  author. 
Until  finally  settled  by  the  Supreme  Court,  it  would  be  idle 
to  venture  any  postive  opinions  upon  the  constitutionality 
of  provisions  which  are  so  susceptible  of  construction  as 


PURPOSE    OF    THE    SIXTEEN    NEW    SECTIONS    M^H*  9^1°^    199 


those  in  question,  especially  where  the  constitutionality  of 
the  provisions  may  depend  upon  the  scope  of  the  meaning 
which  should  he  given  to  one  word;  and  the  foregoing  will 
suilice  to  point  out  some  of  the  possible  constructions  of 
which  these  provisions  of  the  act  might  be  deemed  capable. 

Purpose  of  the  Sections  38-52.  The  object  of  sections  38 
et  seq.  is  not  only  to  provide  means  for  changing  the  grade 
of  a  street,  but  also  to  provide  suitable  machinery  for  rais- 
in-- the  money  necessary  to  pay  the  damages  suffered  by 
those  whose  property  is  damaged  by  the  change  of  grade. 
Two  kinds  of  proceedings  are  contemplated  by  these  sec- 
tions of  the  act,  —  one  against  the  property  to  be  con- 
demned for  the  use  of  the  street,  property  that  will  be 
damaged  by  reason  of  the  change  in  the  grade,  —  the  other 
to  assess  the  property  benefited  by  the  change  of  grade. 

Prior  to  the  adoption  of  the  constitution  of  1879,  adjoin- 
ing property  owners  were  not  entitled,  of  legal  right,  in  the 
absence  of  a  statute  allowing  the  same,  to  any  compensa- 
tion for  damages  which  might  result  from  a  change  of 
grade.  [Sees.  989-990  Dillon's  Municipal  Corporations, 
:ird  ed.  Shan  v.  (/rocker,  42  Gal.  435;  Matter  of  Real  Street, 
39  Cal.  4  (.  >.">.]  But  tin  3  rule  is  altered  by  the  new  constitu- 
tion which  provides  [Art.  I,  sec.  14]  that  "private  property 
shall  not  be  taken  or  damaged  for  public  use  without  just 
compensation  having  been  first  made,"  etc.  The  old  con- 
stitution [Art.  I,  sec.  8,]  simply  provided  that  no  "private 
property  shall  be  taken  for  public  use  without  just  compen- 
sation." As  a  result  of  this  change  in  the  provisions  of  the 
constitution,  it  is  held  that  a  municipal  corporation  is  liable 
for  such  special  consequential  damages  as  the  adjoining 
property  receives  over  and  above  the  common  injury  to  the 
other  almtters  on  the  street,  or  the  general  public.  [Rear- 
don  v.  City  and  County  of  San  Francisco,  66  Cal.  492.J 

In  Kepple  v.  City  of  Keokuk,  2  Am.  &  Eng.  Corp.  Cases 
44:],  the  statute  in  question  provided  that  '"'when  any 
grade  of  any  street  or  allpy  shall  have  been  established, 
and  any  person  shall  have  built  or  made  improvements  on 
such  streets  or  alleys  according  to  the  established  grade 
thereof,  and  such  city  shall  alter  such  established  grade  in 
such  a  manner  as  to  injure  or  diminish  the  value  of  said 
property,  said  city  shall  pay  to  the  owner  or  owners  of  said 
property  so  injured  the  amount  of  such  damage  or  injury." 
Held,  that,  under  this  statute,  the  property  owner 
could  not  recover  for  any  changes  in  the  surface  of  a 
street  if  he  had  erected  buildings  or  otherwise 
improved  his  lots  before  the  establishment  of  any  official 
grade  lines  by  the  city.  But  in  this  case  the  right  of  recov- 
ery rested  wholly  upon  the  statute.  The  rule  has  been 


200    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

held  to  be  otherwise  in  states  where,  as  in  California,  the 
constitution  expressly  provides  that  no  property  shall  be 
"damaged"  without  just  compensation  therefor.  Thus  in 
Nebraska,  where  the  constitutional  provision  is  similar  to 
our  own,  it  was  held  that  a  city  is  liable  to  a  lot  owner  for 
damages  sustained  by  him  by  raising  the  grade  of  the  street 
even  though  he  has  erected  improvements  before  any  grade 
was  established.  [Harmon  v.  Omaha,  17  Neb.  548;  s.  c.  52 
Am.  Rep.  420.] 

"The  change  of  grade  is  a  permament  matter,  and  all 
resulting  injury  must  be  recovered  in  one  action,  for  the 
property  owner  cannot  maintain  successive  actions  as  each 
fresh  annoyance  or  injury  occurs.  The  reason  for  the  rule 
is  not  far  to  seek.  What  is  done  under  color  of  legislative 
authority  and  is  of  a  permanent  nature,  works  an  injury  as 
soon  as  it  is  done,  if  not  done  as  the  statute  requires,  and 
the  injury  which  then  accrues  is,  in  legal  contemplation,  all 
that  can  accrue,  for  the  complainant  is  not  confined  to  a 
recovery  for  past  or  present  damages  but  may,  also,  recover 
prospective  damages  resulting  from  the  wrong.  It  is  evi- 
dent that  a  different  rule  would  lead  to  a  multiplicity  of 
actions,  and  produce  injustice  and  confusion. "  [Elliott  on 
Roads  and  Streets,  p.  345.] 

In  McCarthy  v.  City  of  St.  Paul,  22  Minn.  527,  the  action 
was  brought  pursuant  to  a  provision  of  the  charter  of  the 
defendant  corporation  to  the  effect  that  if  a  grade  established 
pursuant  to  the  order  of  the  common  council,  should  be  at 
any  time  thereafter  altered,  all  damages,  costs  and  charges 
arising  therefrom  shall  be  paid  by  the  city  to  the  owner  of 
any  lot,  or  parcel  of  land,  or  tenement,  which  may  be 
affected  or  injured  in  consequence  of  the  alteration  of  such 
grade.  It  was  held  (1.)  that,  under  such  provision  of  the 
charter,  the  city  became  liable  to  the  plaintiff  for  all  dam- 
age necessarily  resulting  to  him,  in  respect  to  his  property, 
from  the  change  in  the  established  grade  of  the  street; 
(#.)  that  an  action  for  the  recovery  of  such  damages  accrued 
to  plaintiff,  and  might  be  maintained  by  him,  whenever 
and  as  soon  as  the  alteration  in  the  grade  of  the  street 
became  legally  arid  finally  determined  and  fixed.  [By  the 
"grade"  is  meant  the  grade  line  to  which  the  surface  of  the 
street  shall  be  brought  whenever  the  street  shall  be  graded 
or  improved.]  (3.)  That,  though  neither  the  street  nor  the 
lots  affected  by  the  alteration  of  the  grade  have  been  actu- 
ally graded  to  correspond  therewith,  the  necessary  cost  of 
conforming  the  latter  thereto  is  a  proper  element  of  the 
damages,  and  is  not  objectionable  on  the  ground  of  its 
being  contingent  or  prospective — so  also  as  to  the  cost  of 


DAMAGES    FOR    CHANGING    GRADE  Mare?'9a*89™ended       201 

building  a  retaining  wall  to  protect  the  property  from 
encroachments  certain  to  occur  by  reason  of  the  change  of 
the  grade.  Upon  this  branch  of  the  case  the  court  said: 
"This  statute  clearly  imposes  upon  the  city,  whenever  it 
alters  an  established  grade,  a  liability  in  favor  of  the  owner 
of  any  lot,  parcel  of  land,  or  tenement,  affected  or  injured 
thereby,  for  all  such  damages,  costs  and  charges  as  may  be 
occasioned  by  reason  of  such  alteration.  The  alteration  here 
referred  to  is  not  the  change  wrought  in  the  surface  of  the  street 
by  bringing  it  to  the  altered  grade,  but  the  legal  change  in  the 
grade  line  of  the  street  affected  by  the  final  decision  of  the  tri- 
bunal which  is  charged  with  the  power  and  duty  of  acting  in 
such  matters.  Whenever  such  decision  takes  effect  as  to 
any  street,  the  adjoining  property  is  necessarily  affected  by 
it.  Its  value  thereafter  for  purposes  of  sale  or  occupancy, 
is  determined,  in  part,  with  reference  to  the  new  grade, 
which  it  must  be  presumed  the  city,  in  the  discharge  of  its 
duty  in  the  premises,  will  cause  to  be  carried  into  effect  as 
soon  as  may  be.  The  right  to  damages  arising  from  any 
such  alteration  accrues,  therefore,  to  the  property^ owner 
injured  by  it,  whenever  and  as  soon  as  the  same  becomes 
legally  fixed  and  operative." 

The  same  language  is  applicable  to  the  added  sections  of 
the  Vrooman  act — sections  38-53.  Their  purpose  is  to  ena- 
ble the  owner  to  recover  from  the  city,  whenever  it  alters 
an  established  grade,  all  such  damages,  costs  and  charges 
as  may  be  occasioned  by  reason  of  such  alteration.  These 
damages  are  such  as  affect  the  value  of  the  property  for 
purposes  of  sale  or  occupancy,  and  are  incurred  as  soon  as 
the  decision  of  the  council  is  made  changing  the  grade  line. 
If  the  direct  and  necessary  consequence  of  the  act  of  alter- 
ation is  to  depreciate  the  value  of  the  lots  by  reason  of  such 
change  in  the  grade  of  the  street,  the  expenses  which  must 
necessarily  be  incurred,  in  order  to  re-adjust  the  grade  of 
the  lots  to  conform  to  the  changed  condition  of  the  street, — 
whenever  the  surface  of  the  street  shall  be  changed  to  con- 
form to  the  new  grade, — are  as  proper  elements  of  damage 
as  though  the  surface  of  the  street  had  already  been  so 
changed,  and  such  expenses  had  been  actually  incurred. 
The  statute  does  not,  however,  contemplate  a  suit  by  the 
owner  to  recover  such  damages,  but  that  the  city  shall 
itself  assess  the  damages  and  offer  the  same,  less  the  value 
of  the  benefits,  etc.,  to  the  owner,  and,  if  the  owner  refuses 
to  accept  the  damages,  as  assessed  by  the  city's  commission- 
ers, the  city  shall  bring  a  condemnation  suit,  and  in  this 
suit,  the  property  owner,  as  a  defendant,  may  recover  a 
judgment  for  the  amount  of  his  actual  damages. 


202    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

In  Elliott  on  Roads  and  Streets,  pages  353-4  it  is  said: 
"It  is  quite  clear  that  the  mere  fact  that  a  change  has  been 
made  [in  the  grade]  will  not  authorize  the  inference  that  pri- 
vate property  is  injured;  on  the  contrary,  the  burden  of 
showing  a  substantial  injury  rests  upon  the  property  owner, 
for  the  presumption  is  that  the  public  officers,  having  no 
private  interests  to  subserve,  have  not  done  a  wrongful  act 
to  the  injury  of  the  citizen." 

In  their  general  features,  the  provisions  of  sections  38-53, 
as  amended  by  the  act  of  March  9,  1893,  are  quite  similar  to 
the  provisions  of  an  act  approved  March  28,  1868,  entitled 
"An  act  to  authorize  the  board  of  supervisors  of  the  city 
and  county  of  San  Francisco  to  modify  and  change  the 
grade  of  streets  in  said  city  and  county."  [Statutes  1867-8, 
page  463.]  In  fact  it  is  not  improbable  that  the  person  who 
drafted  the  act  adding  sections  38-53  to  the  Vrooman  act, 
either  copied  from  said  act  of  March  28,1368,  or  from  some 
later  act  which  had  been  modeled  upon  said  act  of  1868. 
Subdivision  2  of  section  2  of  said  act  of  March  28, 1868,  [stat- 
utes 1867-8,  page  464]  and  section  39  of  the  Vrooman  act, 
are  substantially  similar  in  all  respects,  with  the  exception 
of  such  differences  as  are  necessitated  by  reason  of  the  fact 
that  in  the  act  of  1868  the  interposition  of  the  county  court 
is  provided  for,  whereas  no  such  provision  is  found  in  the 
Vrooman  act.  Both  acts,  in  substance,  require  that,  within 
a  certain  time  after  the  first  publication  of  the  ordinance 
or  resolution  of  intention  to  change  the  grade,  any  person 
entitled  to  recover  damages,  under  the  act,  shall  file  a  peti- 
tion showing  the  fact  of  his  or  her  ownership,  the  descrip- 
tion and  situation  of  the  property  claimed  to  be  damaged, 
its  market  value,  and  the  estimated  amount  of  damages, 
over  and  above  all  benefits  which  the  property  would  sus- 
tain by  reason  of  the  proposed  change  of  grade  if  com- 
pleted, etc.  This  provision  of  the  said  act  of  March  28, 
1868,  came  before  the  Supreme  Court  in  a  case  entitled  In 
the  Matter  of  Beal  Street,  etc.,  39  Cal.  495,  where  it  was 
held  that  under  this  provision  of  the  act  of  March  28,  1868, 
it  was  the  purpose  of  the  legislature  to  confine  the  award  of 
damages  to  those  who  should  file  the  petition  provided  for 
in  said  subdivision  2  of  section  2  of  the  act.  The  court,  per 
Wallace  J.,  page  499,  said:  "We  think  that  a  careful  exam- 
ination of  the  various  provisions  of  the  act  will  show  that  it 
was  not  its  purpose  to  provide  for  the  payment  of  damages 
to  those  who,  not  claiming  them,  might  fairly  be  supposed 
to  intentionally  waive  them;  or  who  could  not,  upon  their 
consciences,  state  [under  oath]  that  they  thought  themselves 
entitled  to  receive  them.  Upon  the  filing  of  the  required 


DAMAGES  FOR  CHANGING  GRADE     S*1**1  203 


petition  by  a  party  supposing  himself  about  tobe  damaged, 
all  other  property  owners  within  the  designated  limits  \i.  e. 
limits  of  the  assessment  district]  who  possibly  might  there- 
after be  assessed  as  beneficiaries,  must  be  considered  as 
defendants  denying  the  statements  of  the  petitioner,  inter- 
ested, of  course,  in  reducing  the  amount  of  damages  claimed 
by  him,  and  they  should  be  afforded  an  opportunity  to  pro- 
duce witnesses  to  disprove  his  allegations.  But  if  no  claim 
for  damages  be  placed  on  file  by  the  owner  of  a  particular 
lot,  the  defendants  are  without  the  notice  to  enable  them  to 
prepare  to  resist  it;  and  for  much  the  same  reason,  we 
think  that  the  commissioners,  in  their  award  of  damages  to 
any  petitioner  should  not  exceed  the  amount  claimed  by 
him  in  the  petition  itself,  since  those  adversely  interested 
may  fairly  be  supposed  to  have  acquiesced  in  the  correct- 
ness of  the  amount  claimed  in  the  petition  itself."  This 
language  seems  to  be  just  as  applicable  to  the  provisions  of 
sections  38-53  of  the  present  street  work  act,  as  to  said  act 
of  March  28,  1868.  The  most  important  difference  seems 
to  be  that  at  the  time  when  the  said  act  of  1868  was  passed 
the  property  owners  were  not,  in  the  absence  of  statutory 
provisions  therefor,  entitled,  of  right,  to  recover  any  damages 
suffered  by  reason  of  a  change  of  grade,  since  such  dam- 
ages did  not  constitute  a  "  taking  of  private  property  for 
public  use,"  within  the  meaning  of  that  phrase  as  used  in 
the  constitution.  Whereas,  under  the  provision  of  the 
present  constitution,  "  private  property  shall  not  be  taken 
or  damaged  for  public  use  without  just  compensation,"  etc. 
So  that  now  every  property  owner  is,  under  the  express  pro- 
vision of  the  constitution,  entitled  to  recover  such  special 
consequential  damages  as  he  receives  over  and  above  the 
common  injury  to  the  other  abutters  on  the  street,  or  the 
general  public  by  reason  of  the  decision  of  the  council 
changing  the  grade  of  a  street.  [Reardon  v.  S.  F.,  66  Cal. 
492;  Harmon  v.  Omaha,  17  Neb.  548;  s.  c.  52  Am.  Rep. 
420.]  But  while  under  the  constitution  the  property  owner 
has  the  legal  right  to  recover  such  damages  in  such  cases, 
and  could  do  so  in  the  absence  of  any  statute  giving  such 
right,  still  the  legislature  may  prescribe  all  reasonable  reg- 
ulations for  the  enforcement  of  the  right,  and  may,  there- 
fore, provide  that,  to  entitle  a  property  owner  to  recover 
damages  he  must  first  file  the  petition  provided  for  by  sec- 
tion 39'of  the  act;  and  therefore,  if  under  a  similar  provis- 
ion of  said  act  of  March  28,  1868,  it  be  held  that  the  prop- 
erty owner  cannot  recover  damages  unless  he  files  a  petition 
therefor,  the  same  reasoning  should  lead  to  a  similar  con- 
struction of  the  provisions  of  section  38  et  seq.  of  the  Vroo- 


204    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

man  act.  The  fact  that  the  present  constitution  gives  the 
right  to  recover  such  damages,  without  any  special  statu- 
tory provision  therefor,  cannot  have  any  stronger  bearing 
upon  the  question  than  the  argument  presented  by  the 
learned  counsel  for  the  respondents  in  said  proceeding  in  the 
Matter  of  Beale  Street,  39  Cal.  497.  Public  policy  seems  to 
demand  that  in  this  respect,  the  same  construction  be 
placed  upon  the  provisions  of  sections  38-53  of  the  present 
act,  as  was  placed  upon  said  act  of  1868,  since  those  whose 
property  is  liable  to  be  assessed  to  pay  the  expenses  of  the 
change  of  grade  should  be  enabled  to  know  how  much  will 
have  to  be  paid  in  damages,  before  they  can  intelligently 
determine  whether  or  not  they  will  file  objections  to  the 
proposed  change  of  grade. 

In  Elliott  on  Roads  and  Streets,  page  353,  it  is  said: 
"Where  the  statute  requires  the  municipality  to  pay  or  ten- 
der the  damages  caused  by  a  change  of  grade,  it  has  no 
right  to  proceed  until  this  is  done,  and  if  it  does  an  action 
will  lie.  The  authority  delegated  is  to  proceed  with  the 
work  in  accordance  with  law,  and  if  the  municipal  officers 
attempt  to  proceed  in  any  other  mode,  they  act,  in  legal 
contemplation,  without  authority  and  subject  their  principal 
to  an  action  as  a  wrong-doer  who  has  invaded  private  rights. 
The  property  owner  who  sustains  and  shows  injury  may,  if 
he  elects,  enjoin  the  prosecution  of  the  work  until  the  dam- 
ages are  assessed  and  tendered." 

Constitutionality  of  the  Act  adding  Sections  38—53,  and 
of  the  Act  amending  the  same.  The  manner  in  which 
the  Vrooman  act  of  March  18,  1885,  was  amended  by 
the  addition  of  sections  38-53,  demands  a  few  words 
in  respect  to  the  constitutionality  of  the  act  adding  these 
sections  to  the  original  act.  But  before  proceeding  with 
this  question  of  constitutionality,  it  might  be  well  to 
consider  some  of  the  legislative  absurdities  in  the  enact- 
ment of  these  amendatory  acts.  As  stated,  supra,  these 
sections — sections  38-53 — were  first  added  by  the  act  of 
March  31,  1891  (statutes  '91,  p.  461),  and  in  1893,  by  the  act 
approved  March  9,  1893,  the  legislature  amended  each  of 
these  sixteen  new  sections.  [Statutes  '93,  p.  89.] 

On  March  17, 1891,  by  an  act  approved  on  thatdate  [stat- 
utes '91,  p.  116],  there  went  into  effect — if  constitutionally 
enacted — an  act  entitled  "  An  act  to  amend  an  act  entitled 
1  An  act  to  provide  for  work  upon  streets,  lanes,  alleys, 
courts,  places,  and  sidewalks,  and  for  construction  of  sew- 
ers within  municipalities/  approved  March  18,  1885,  by 
adding  thereto  an  additional  part  numbered  four,  consist- 
ing of  sections  thirty-eight,  thirty-nine,  forty,  forty-one, 


CONSTITUTIONALITY    OP    NEW    SECTIONS       M^rch^isgT^^       205 


forty-two,  forty-three,  and  forty-four,  relative  to  a  system  of 
street  bonds."  This  act  provided  for  a  system  of  street 
bonds  to  cover  the  cost  of  street  improvements,  and  added 
eight  new  sections,  to  the  act  of  March  18,  1885,  sections 
38  to  45  inclusive.  It  was  repealed  in  1893  by  the  act  of 
February  27,  1893.  [Statutes  '93,  p.  33]. 

On  March  31,  1891,  by  an  act  approved  on  that  date  [stat- 
utes '91  p.  461],  there  went  into  effect  —  if  constitutionally 
enacted  —  an  act  entitled  "An  act  to  amend  an  act  entitled 
'An  act  to  provide  for  work  upon  streets,  lanes,  alleys,  courts, 
places,  and  sidewalks,  and  for  the  construction  of  sewers 
within  municipalities,  'approved  March  18,  1885,  by  adding 
thereto  certain  new  and  additional  sections,  to  provide  for 
the  mode  of  carrying  into  effect  certain  provisions  of  said 
act  relative  to  changing  grades."  This  act  purported  to 
amend  said  act  of  March  18,  1885,  by  adding  thereto 
sixteen  new  sections  numbered  repectively  38  to  53, 
inclusive.  But  it  will  be  observed  that  the  said  act 
approved  March  17,  1891,  —  the  bond  act  —  likewise  added 
sections  numbered  38  to  45  inclusive,  so  that  there 
was  a  conflict  in  the  numbering  of  the  sections.  But,  if 
there  be  no  more  serious  absurdity  than  this,  it  isaltog9ther 
likely  that  the  courts  will  disregard  this  conflict  in  the 
numbers  of  the  sections  added  by  these  two  amendatory 
acts.  Both  acts  have  been  repealed;  the  said  act  of  March 
17,  1891  ,  by  the  act  of  Feb.  27,  1893  [statutes  '93,  p.  38],  and 
the  said  act  of  March  31,  1891,  has  been  superseded  by  the 
act  of  March  9,  1893.  [Statutes  '93,  p.  89]. 

But  the  said  act  of  March  9,  1893  [statutes,  '93,  p.  89],  intro- 
duces another  absurdity.  It  is  entitled  "An  act  to  amend 
sections  thirty-eight  to  fifty-three,  inclusive,  of  an  act 
approved  March  31,  1891,  adding  these  sections  to  'An  act 
to  provide  for  work  upon  streets,  alleys,  lanes,  courts,  places, 
and  sidewalks,  and  for  the  construction  of  sewers  with- 
in municipalities,'  approved  March  18,  1885."  This 
act,  it  will  be  noticed,  purports  to  amend  sections  38  to  53, 
inclusive,  of  the  act  approved  March  31,  1891.  But,  while 
the  act  approved  March  31,  1891,  added  sections  38  to  53, 
inclusive,  to  the  act  of  March  18,  1885,  it,  itself,  contained 
but  one  section,  and  that  section  was  numbered  number  1. 
By  section  number  1  of  the  act  of  March  31,  1891,  sections 
38  to  53,  inclusive,  were  added  to  the  act  of  March  18,  1885. 

The  act  of  March  9,  1893,  should  have  amended  sections 
38  to  53  of  the  act  of  March  18,  1885,  as  those  sections  were 
added  to  the  said  act  by  the  act  of  March  31,  1891,  or  it 
should  have  amended  section  1  of  the  act  of  March  31,  1891 


206    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

by  providing  that  "  Section  1  of  the  act  of  March  31,  1891, 
is  hereby  amended  so  as  to  read  as  follows:'7  etc. 

But  it  is  likely  that  a  benignant  court,  merciful  of  such 
legislative  stupidities  as  must  ever  be  unavoidable  so  long  as 
the  people  shall  continue  to  compel  their  legislative  ser- 
vants to  complete  their  bi-annual  labors  in  a  session  of 
sixty  days,  or  continue  work  as  "  a  labor  of  love"  only,  will 
so  far  as  possible,  endeavor  to  reconcile  with  common  sense 
these  apparent  blunders  in  the  enactment  of  these  statutes. 
But  it  is  beyond  comprehension  that  the  draughtsman  who 
drew  these  acts  should  not  see  the  anomalies  above  pointed 
out.  But  aside  from  these  absurdities  in  the  enactment  of 
these  amendatory  acts,  there  is  a  more  serious  question  in 
connection  with  their  enactment, — one  that  affects  their 
constitutionality.  Sections  38—53  were  amended  by  the 
act  of  March  9,  1893.  They  were  first  added  to  the  original 
act — the  Vrooman  act  of  March  18, 1885,  by  the  act  approved 
March  31,  1891.  The  act  of  March  9, 18i»3,  is  amendatory 
of  the  act  of  March  31,  1891.  If  this  latter  act  was  unconsti- 
tutional for  any  reason,  sections  38-53  were  never  added  to 
the  original  act,  and  the  act  of  March  9,  1893,  had  no  such 
sections  to  amend.  It  is  possible  that  the  act  of  March  31, 
1891,  is  invalid  and  void,  since  it  purports  to  amend  the  act 
of  March  18, 1885,  by  adding  new  sections  thereto,  but  does 
not  re-enact  and  publish  at  length  the  act  as  amended.  The 
constitution  [Sec.  24,  Art.  IV,]  provides:  "  No  law  shall  be 
revised  or  amended  by  reference  to  its  title;  but  in  such 
case  the  act  revised  or  section  amended  shall  be  re-enacted 
and  published  as  revised  or  amended." 

The  act  revised  or  section  amended  must  be  re-enacted  and 
published  as  revised  or  amended.  If  a  section  is  amended 
it  must  be  re-enacted  and  published  as  amended.  Must 
every  act  which  is  amended  be  re-enacted  and  published  as 
.amended?  Or  does  the  constitution  mean  that  the  whole 
act  is  only  to  be  re-enacted  and  published  when  it  is 
revised?  And  what  does  the  word  "revised"  mean?  These 
are  questions  which  can  only  be  authoritatively  answered 
by  the  Supreme  Court.  There  can  be  no  question  but  that 
an  act  is  "amended"  when  new  sections  are  added  to  it,  pro- 
vided they  are  not  so  far  in  conflict  with  the  provisions  of 
the  original  act  as  to  operate  as  a  repeal  of  portions  of 
the  old  act.  In  such  case  the  provisions  of  the  latter  act, 
which  operate  as  a  repeal  of  a  portion  of  the  older  statute, 
are  not,  properly  speaking,  amendments  of  the  old  la\v. 
But,  is  the  act  in  that  case  "revised?"  An  act  is  amended 
when  it  is  revised.  But,  is  it  necessarily  revised  when  it 
is  amended?  The  only  decision  by  our  Supreme  Court 


CONSTITUTIONALITY    OF    NEW    SECTIONS      gaA"!!1*11***    207 


which  throws  any  light  upon  this  question  is  the  case  of 
Earl  v.  S.  F.  Board  of  Education,  55  Gal.  489.  The  question 
in  that  case  was  as  to  the  constitutionality  of  an  act  known 
as  the  Traylor  act,  and  entitled  "  An  act  to  add  a  new  sec- 
tion to  the  Political  Code,  to  be  known  as  section  1618, 
relating  to  salaries  of  school  teachers  in  cities  having  100,- 
000  inhabitants  or  more."  Judge  Ross  peems  to  think  that 
this  act  was  not  an  amendment  to  the  Political  Code, 
because  in  this  case  it  was  so  far  in  conflict  with  portions 
of  the  Political  Code  as  to  operate  a  repeal  of  those  portions 
of  the  code,  and  in  such  case  the  provisions  of  the  new  law 
are  not,  properly  speaking,  amendments  of  the  old  law.  [See 
the  concurring  opinion  of  Mr.  Justice  McKinstry,  page  493.] 

But  Mr.  Justice  Ross  says,  page  492,  "  If  treated  as  an 
amendment  at  all,  it  is  in  direct  conflict  with  section  24  of 
Art.  IV,  of  the  constitution,  which  declares  that  *  *  * 
'no  law  shall  be  revised  or  amended  by  reference  to  its 
title;  but  in  such  case,  the  act  revised  or  section  amended 
shall  be  re-enacted,  and  published  at  length  as  revised  or 
amended.'  There  is  no  pretense  here  that  the  law,  what- 
ever it  is,  supposed  to  have  been  amended  by  the  Traylor 
act  was  re-enacted  and  published  at  length  as  amended,  as  is 
expressly  required  by  the  constitution.  If  this  law  is  to  be 
uphold  as  an  amendment,  it  seems  to  us  it  would  be  open- 
ing the  doors  to  the  accomplishment  by  indirection  of  many 
of  the  evils  it  was  manifestly  intended  by  the  framers  of 
the  constitution  to  prevent,  and  thus  wipe  out  some  of  its 
most  salutary  provisions."  [But  see  Baum  v.  Raphael,  57 
Cal.  361;  see  also,  Mok  v.  Detroit  Ass'n,  30  Mich.  511.] 
The  Missouri  courts  hold  that  under  the  constitution  of 
Missouri  if  an  act  is  amended  merely  by  the  addition  of 
new  sections  thereto,  the  whole  act  as  thus  amended  need 
not  be  re-enacted  and  published.  It  is  held  that  the  pro- 
vision of  the  Missouri  constitution  corresponding  to  the 
provisions  of  section  24  of  Art.  IV  of  the  California  consti- 
tution, does  not  apply  to  such  a  case.  [State  v.  Thurston, 
(Mo.)  4  S.  W.  Rep.  930.] 

In  the  absence  of  a  direct  decision  by  our  Supreme  Court 
upon  this  question,  in  a  case  in  which  the  question  is  fairly 
and  squarely  presented,  the  question  must  remain,  more  or 
less,  in  the  realm  of  doubt,  and  the  possible  unconstitution- 
ality  of  the  act  by  which  these  new  sections  are  added  can 
only  be  suggested,  without  venturing  an  unqualified  opinion 
thereon.  It  will  be  noticed  that  the  Traylor  act,  —  under  con- 
sideration in  the  case  of  Earl  v.S.F.  Board  of  Education,— 
did  not  in  terms  purport  to  amend  the  Political  Code,  but 
.merelv  stated  in  its  title  that  it  was  "An  act  to  add  a  new 


208    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

section  to  the  Political  Code,"  etc.  On  the  other  hand,  the 
act  of  March  31,  1891,  hy  which  the  new  sections — sections 
38-53 — were  added  to  the  act  of  March  18,  1885,  expressly 
states  in  its  title  that  it  is  "An  act  to  amend  an  act  entitled," 
etc.,  and  section  1  expressly  states  that  the  act  of  March  18, 
1885,  "is  herehy  amended  by  adding  thereto  sections,  as 
follows:" 

SECTION  39.  Within  thirty  days  after  the  first  publication  of  said  notice, 
any  person  owning  property  fronting  upon  said  portions  of  the  street  or 
streets  where  such  change  of  grade  is  made,  may  file  a  petition  with  the 
clerk  of  the  city  council  showing  the  fact  of  such  ownership,  the  descrip- 
tion and  situation  of  the  property  claimed  to  be  damaged,  its  market  value, 
and  the  estimated  amount  of  damages  over  and  above  all  benefits 
which  the  property  would  sustain  by  the  proposed  change  if  completed. 
Such  petition  shall  be  verified  by  the  oath  of  the  petitioners  or  their 
agents.  [Amendment  approved  March  9,  1893,  statutes  1893,  page  90. 

Compare  section  39  with  subdivision  2  of  section  2  of  an 
act  approved  March  28,  1868  [statutes  1867-8,  p.  464],  and 
see  In  re  Beale  Street,  39  Cal.  495.  See  notes  under  preced- 
ing section,  page  et  seq., — supra. 

SECTION  40.  Whenever  such  petition  or  petitions  have  been  filed,  the 
mayor,  surveyor,  and  superintendent  of  streets,  of  the  city,  or  city  and 
county,  acting  as  a  board  of  commissioners,  shall  assess  the  benefits,  dam- 
ages, and  costs  of  the  proposed  change  of  grade  upon  each  separate  lot  of 
land  situated  within  such  assessment  dsstrict,  as  said  lot  appears  of  record 
upon  the  last  city,  or  city  and  county  assessment  roll.  [Amendment  approved 
March  9,  1893,  statutes  1893,  p.  90.] 

SECTION  41.  The  commissioners  shall  be  sworn  to  make  the  assessments 
of  benefits  and  damages  to  the  best  of  their  judgment  and  ability,  without 
fear  or  favor.  [Amendment  approved  March  9,  1893,  statutes  1893,  p.  90.} 

SECTION  42.  The  commissioners  shall  have  power  to  subpoena  witnesses 
to  appear  before  them  to  be  examined  under  oath,  which  any  one  of  said 
commissioners  is  authorized  to  administer.  [Amendment  approved  March  9, 
1893,  statutes  1893,  p.  90.] 

SECTION  43.  The  commissioners  having  determined  the  damage  which 
would  be  sustained  by  each  petitioner,  in  excess  of  all  benefits,  shall  pro- 
ceed to  assess  the  total  amount  thereof,  together  with  the  costs,  charges, 
and  expenses  of  the  proceedings,  upon  the  several  lots  of  land  benefited 
within  the  district  of  assessment;  so  that  each  of  the  lots  shall  be  assessed 
in  accordance  with  its  benefits  caused  by  such  work  or  improvement;  and 
during  the  progress  of  their  work  shall  make  a  report  to  such  city  council 
as  often  as  it  may  be  required.  [Amendment  approved  March  9,  1893,  stat- 
utes 1893,  p.  90.] 

SECTION  44.  The  commissioners  shall  make  their  report,  in  writing, 
and  shall  subscribe  to  the  same  and  file  with  the  city  council.  In  their 
said  report  they  shall  describe  separately  each  piece  of  property  which  will 
sustain  damage,  stating  the  amount  of  damages  each  will  sustain  over  and 
above  all  benefits.  They  shall  also  gfve  a  brief  description  of  each  lot  ben- 
efited within  said  assessment  district,  the  name  of  the  owner,  if  known, 
and  the  amount  of  benefits  in  excess  of  damages  assessed  against  the  same. 


SECTIONS   FORTY-FIVE  AND  FORTY-  SIX  M^rch^^f  "S  amended  209 


In  case  the  three  commissioners  do  "not  agree,  the  award  agreed  upon  by 
any  two  of  them  shall  be  sufficient.  In  designating  the  lots  to  be  assessed, 
reference  may  be  had  to  a  diagram  of  the  property  in  the  district  affected  ; 
such  diagram  to  be  attached  to  and  made  a  part  of  the  report  of  the  com- 
missioners. [Amendment  approved  March  9,  1893,  statutes  1893,  p.  91.] 

SECTION  45.  If  in  any  case  the  commissioners  find  that  conflicting 
claims  of  title  exist,  or  shall  be  in  ignorance  or  doubt  of  the  ownership  of 
any  lot  or  land,  or  any  improvement  thereon,  or  any  interest  therein,  it 
shall  be  set  down  as  belonging  to  unknown  owners.  Error  in  the  designa- 
tion of  the  owner  or  owners  of  any  land  or  improvements,  or  particulars  of 
their  interest,  shall  not  affect  the  validity  of  the  assessment.  On  the  filing 
of  said  report,  the  clerk  of  said  city  council  shall  give  notice  of  such  filing 
by  the  publication  of  at  least  ten  days  in  one  or  more  daily  newspapers 
published  and  circulated  in  said  city;  or  if  there  be  no  daily  newspaper, 
by  three  successive  issues  in  a  weekly  or  semi-weekly  newspaper  so  pub- 
lished and  circulated  ;  and  said  notice  shall  require  all  persons  interested 
to  show  cause,  if  any,  why  such  report  should  not  be  confirmed,  before  the 
city  council,  on  a  day  to  be  fixed  by  the  city  council  and  stated  in  said 
notice,  which  day  shall  not  be  less  than  twenty  days  from  the  first  publi- 
cation thereof.  [Amendment  approved  March  #,  1893,  statutes  1893,  page  91.] 

SKCTIOX  40.  All  objections  shall  be  in  writing  and  filed  with  the  clerk 
Of  the  city  council,  who  shall  at  the  next  meeting  after  the  date  fixed  in 
the  notice  to  show  cause,  lay  the  said  objections,  if  any,  before  the  council, 
which  shall  lix  a  time  for  hearing  the  same;  of  which  time  the  clerk  shall 
notify  the  objectors  in  the  same  manner  as  are  notified  objectors  to  the 
original  resolution  of  intention.  At  the  time  set,  or  at  such  other  time  as 
the  hearing  may  hi-  adjourned,  the  city  council  shall  hear  such  objections 
•ami  pass  upon  the  same,  and  at  such  time  shall  proceed  to  pass  upon  such 
report,  and  may  confirm,  correct,  or  modify  the  same,  or  may  order  the 
commissioners  to  make  a  new  assessment,  repoit,  and  plat,  which  shall  be 
filed,  notice  given  and  had,  as  in  the  case  of  an  original  report.  In  ca?e 
the  ordinance  or  resolution  of  intention  also  provides  for  the  assessing 
upon  the  district  the  cost  of  regrading  or  repavirg  such  street  or  streets  to 
such  changed  or  modified  grade,  after  the  report  of  the  commissioners  as 
to  the  damages  caused  by  such  change  of  grade  has  been  passed  upon  by 
the  city  council,  it  shall  then  advertise  for  bids  to  perform  the  work  of 
re.irrading,  repaying,  sewering,  sidewalking,  or  curbing  such  street  cr 
streets  Avith  the  same  or  other  material  with  which  the  same  had  been  for- 
merly graded,  paved,  sewered,  sidewalked,  or  curbed;  first  causing  a  notice, 
with  specifications,  to  be  posted  conspicuously  for  five  days  on  or  near  the 
council  chamber  door,  inviting  sealed  proposals  for  bids  for  doing  such 
work,  and  shall  also  cause  notices  of  said  work,  inviting  said  proposals  and 
referring  to  the  specifications  posted  or  on  file,  to  be  published  two  days 
in  a  daily,  semi-weekly,  or  weekly  newspaper  published  and  circulated  in 
said  city,  and  designated  by  the  city  council  for  that  purpose,  and  in  case 
there  is  no  newspaper  published  in  the  city,  then  it  shall  be  posted  as 
provided  in  section  three  of  the  original  act  to  which  this  is  amendatory. 
All  proposals  or  bids  offered  shall  be  accompanied  by  a  check,  payable  to 
the  order  of  the  mayor  of  the  city,  and  certified  by  a  responsible  bank  for 
that  amount,  which  shall  not  be  less  than  ten  per  cent,  of  the  aggregate  of 
the  proposals;  or  by  a  bond  for  said  amount,  signed  by  the  bidder  and  two 


210    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

sureties,  who  shall  justify  under  oath  in  double  said  amount  over  and 
above  all  statutory  exemptions.  Said  proposals  or  bids  shall  be  delivered 
to  the  clerk  of  the  said  city  council,  and  said  council  shall,  in  open  ses- 
sion, examine  and  publicly  declare  the  same;  provided,  however,  that  no 
proposal  or  bid  shall  be  considered  unless  accompanied  by  a  check  or  a 
bond  satisfactory  to  the  council.  The  city  council  may  reject  any  and  all 
bids,  and  may  award  the  contract  to  the  lowest  responsible  bidder,  which 
award  shall  be  approved  by  the  mayor  or  the  three-fourths  vote  of  the  city 
council.  If  not  approved  by  the  mayor  or  the  three-fourths  vote  of  the 
city  council,  the  city  council  may  re-advertise  for  proposals  or  bids  for 
the  performance  of  the  work,  as  in  the  first  instance,  and  thereafter  pro- 
ceed in  the  manner  in  this  section  provided.  All  checks  accompanying 
bids  'shall  be  held  by  the  clerk  until  the  bearer  has  entered  into  a  contract 
as  herein  provided;  and  in  case  he  refuses  so  to  do,  then  the  amount  of  his 
certified  check  shall  be  declared  forfeited  to  the  city,  and  shall  be  collected 
and  paid  into  its  general  fund,  and  all  bonds  so  forfeited  shall  be  prose- 
cuted and  the  amount  thereon  collected  paid  into  such  fund.  Notice  of  the 
awards  of  the  contracts  shall  be  published  and  posted  in  the  same  manner 
as  hereinbefore  provided  for  the  posting  of  proposals  for  said  work.  [Amend- 
ment approved  March  9,  1893,  statutes  1893,  p.  91.] 

SECTION  47.  After  such  contract  has  been  awarded  and  entered  into,  the 
clerk  of  the  city  council  shall  certify  to  the  city  council  that  fact,  together 
with  the  total  amount  of  the  cost  of  the  same,  whereupon  the  city  council 
shall  cause  to  be  forwarded  to  the  commissioners  a  copy  of  such  certificate; 
whereupon  such  commissioners  shall  proceed  to  assess  the  cost  of  doing 
such  work  upon  all  the  lots  and  land  lying  within  the  district  to  be  assessed, 
distributing  the  same  so  that  each  lot  will  be  assessed  for  its  proportion  of 
the  same,  according  to  the  benefits  it  receives  from  the  work,  and  in  the 
same  manner  in  which  the  damages  caused  by  the  change  of  grade  were 
assessed  upon  the  same.  Such  commissioners,  in  making  such  assessment, 
shall  show  the  total  amount  for  which  each  lot  or  tract  is  assessed,  in 
excess  of  all  benefits,  for  the  total  cost  of  changing  and  modifying  the 
grade  of  the  street,  as  well  as  the  regrading,  repaving,  sewering,  sidewalk- 
ing,  and  curbing  of  the  same,  and  costs  or  damages  connected  therewith. 
The  provisions  of  the  act  to  which  this  is  amendatory  in  regard  to  the 
mode  or  manner  of  the  assessment  of  the  cost  of  such  work  shall  not  apply 
to  the  work  herein  contemplated;  neither  shall  the  provisions  of  the  same 
in  regard  to  the  issuing  of  bonds  to  represent  the  cost  of  the  same,  nor  the 
provisions  in  regard  to  the  right  of  protest  against  the  work.  (Amendment 
approved  March  9,  1893,  statutes  1893,  p.  92.} 

Section  47  provides  that  "  the  provisions  of  the  act  to 
which  this  is  amendatory  in  regard  to  the  mode  or  manner 
of  the  assessment  of  the  cost  of  such  work  shall  not  apply 
to  the  work  herein  contemplated,"  etc.  There  is  an  ambi- 
guity here.  If  this  language  means  that  "  the  provisions 
of  the  act  to  which  this  act  is  amendatory  *  *  *  shall 
not  apply,"  etc. — then  the  act  referred  to  is  the  act  of  March 
31,  1891,  by  which  these  new  sections  were  first  added  to 
the  old  and  original  act.  If  the  language  means  that  "the 
provisions  of  the  act  to  which  this  section  is  amendatory  * 


SECTIONS  FORTY-P:IGHT  AND  FORTY-NINE  M\cr8Ch79tokf3asamend€d  211 

*  *  shall  not  apply,"  etc. — then  the  act  referred  to  is,  in 
all  probability,  the  original  act  itself— the  act  of  March 'l8, 
1.SM5.  This  latter  construction  is  undoubtedly  the  true 
meaning  of  the  section,  as  it  is  apparent  that  the 
intention  of  the  legislature  was  to  declare  that  the 
front-foot  principle  of  assessment  provided  for  by 
section  7  of  the  original  act — the  act  of  March  18, 
1885, — should  not  apply  in  these  original  proceedings  to 
change  the  grade,  but  that  the  district  assessment  plan 
should  prevail.  Neither  section  47  nor  section  46  provides 
who  shall  execute  the  written  contract  on  behalf  of  the  city. 
But  section  52  provides  that  "all  other  provisions  contained 
in  the  act  to  which  this  is  amendatory,  and  which  pro- 
visions are  not  in  conflict  herewith,  shall  apply  to  all  mat- 
ters contained  herein/'  and  as  it  was  undoubtedly  the  inten- 
tion of  the  legislature  to  declare  by  this  language  that  the 
provisions  of  sections  1  to  37,  inclusive,  of  the  original  act 
— the  act  of  March  18,  1885 — as  the  same  have  been  amend- 
ed from  time  to  time  since, — shall  apply  to  all  matters  con- 
tained in  the  new  sections — sections  38-53 — when  not  in 
conflict,  it  seems  reasonably  certain  that  the  contract  is  to 
be  executed  by  the  superintendent  of  streets  in  the  same 
manner  ad  the  contracts  for  the  work  provided  for  in  the 
prior  sections  of  the  act.  [See  subdivision  14  of  section  34, 
supra,  page  189.] 

SECTION  48.  The  clerk  of  said  city  council  shall  forward  to  the  street 
superintendent  of  the  city  a  certified  copy  of  the  report,  assessment,  and 
plat,  as  finally  confirmed  and  adopted  by  the  city  council.  Such  certified 
copy  shall  thereupon  be  the  assessment  roll,  the  cost  of  which  shall  be 
provided  for  by  the  commissioners,  as  a  portion  of  the  cost  of  the  proceed- 
ings therein.  Immediately  upon  receipt  thereof  by  the  street  superintend- 
ent, the  assessment  therein  contained  shall  become  due  and  payable,  and 
shall  be  a  Hen  upon  all  the  property  contained  or  described  therein. 
[Amendment  approved  March  9,  1893,  statutes  1893,  p.  93.} 

SECTION  49.  The  superintendent  of  streets  shall  therupon  give  notice, 
by  publication  for  ten  days  in  one  or  more  daily  newspapers  published  and 
circulated  in  said  city,  or  city  and  county,  or  two  successive  insertions  in  a 
weekly  or  semi-weekly  newspaper  so  published  and  circulated,  that  he  has 
received  said  assessment  roll,  and  that  all  sums  levied  and  assessed  in  said 
assessment  roll  are  due  and  payable  immediately,  and  that  the  payment 
of  said  sums  is  to  be  made  to  him  within  thirty  days  from  the  date  of 
the  first  publication  of  said  notice.  Said  notice  shall  also  contain  a  state- 
ment that  all  assessments  not  paid  before  the  expiration  of  said  thirty  days 
will  be  declared  to  be  delinquent,  and  that  thereafter  the  sum  of  five  per 
cent,  upon  the  amount  of  such  delinquent  assessment,  together  with  the  cost 
of  advertising  each  delinquent  assessment,  will  be  added  thereto.  When  pay- 
ment of  any  assessment  is  made  to  said  superintendent  of  streets,  he  shall 
write  the  word  "paid"  and  the  date  of  payment  opposite  the  respective 
assessment  so  paid,  and  the  name  of  the  persons  by  or  for  whom  said 


212    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

assessment  is  paid,  and  shall  give  a  receipt  therefor.  On  the  expiration  of 
said  thirty  days,  all  assessments  then  unpaid  shall  he  and  become  delin- 
quent, and  said  superintendent  of  streets  shall  certify  such  fact  at  the  foot 
of  said  assessment  roll,  and  shall  add  five  per  cent,  to  the  amount  of  each 
assessment  so  delinquent.  The  said  superintendent  of  streets  shall,  within 
five  days  from  the  date  of  such  delinquency,  proceed  to  advertise  the 
various  surr.s  delinquent,  and  the  whole  thereof,  including  the  cost  of 
advertising,  which  last  shall  not  exceed  the  sum  of  fifty  cents  for  each  lot, 
piece,  or  parcel  of  land  separately  assessed,  by  the  sale  of  the  assessed 
property  in  the  same  manner  as  is  or  may  be  provided  for  the  collection  of 
state  and  county  taxes ;  and  after  the  date  of  said  delinquency,  and  before 
the  time  of  such  sale  herein  provided  for,  no  assessment  shall  be  received, 
unless  at  the  same  time  the  five  per  cent,  added  to  as  aforesaid,  together 
with  the  costs  of  advertising  then  already  incurred,  shall  be  paid  there- 
with. Said  list  of  delinquent  assessments,  with  a  notice  of  the  time  and 
place  of  sale  of  the  property  affected  thereby,  shall  be  published  daily  for 
five  days,  in  one  or  more  daily  newspapers  published  and  circulated  in 
such  city,  or  by  at  least  two  insertions  in  a  weekly  newspaper  so  published 
and  circulated  before  the  day  of  sale  for  such  delinquent  assessment.  Said 
time  of  sale  must  not  be  less  than  seven  days  from  the  date  of  the  first 
publication  of  said  delinquent  assessment  list,  and  the  place  must  be  in  or 
in  front  of  the  office  of  said  superintendent  of  streets.  All  property  sold 
shall  be  subject  to  redemption  for  one  year,  and  in  the  same  manner  as  in 
sales  for  delinquent  state  and  county  taxes;  and  the  superintendent  of 
streets  shall,  if  there  is  no  redemption,  make  and  deliver  to  the  purchaser 
at  such  sale  a  deed  conveying  the  property  sold,  and  may  collect  for  each 
certificate  fifty  cents,  and  for  each  deed  one  dollar.  All  provisions  of  the 
law  in  reference  to  the  sale  and  redemption  of  property,  for  delinquent 
state  and  county  taxes,  in  force  at  any  given  time,  shall  also  then,  as  far  as- 
the  same  are  not  in  conflict  with  the  provisions  of  this  act,  be  applicable 
to  the  sale  and  redemption  of  property  for  delinquent  assessments  hereun- 
der,  including  the  issuance  of  certificates  and  execution  of  deeds.  The 
deed  of  the  street  superintendent,  made  after  such  sale,  in  case  of  failure 
to  redeem,  shall  be  prima  facie  evidence  of  the  regularity  of  all  proceed- 
ings hereunder,  and  of  title  in  the  grantee.  The  superintendent  of  streets 
shall  from  time  to  time  pay  over  to  the  city  treasurer  all  moneys  collected 
by  him  on  account  of  any  such  assessments.  The  city  treasurer  shall r 
upon  receipt  thereof,  place  the  same  in  a  separate  fund,  designating  each 
fund  by  the  name  of  the  street,  square,  lane,  alley,  court,  or  place  for  the 
change  of  grade  for  which  the  assessment  was  made.  Payments  shall  be 
made  from  said  fund  to  the  parties  entitled  thereto,  upon  warrants  signed 
by  the  commissioners  or  a  majority  of  them.  [Amendment  approved  March 
9,  1893,  statutes  1893,  p.  93.} 

When  a  street  work  act  merely  provides  that  the  assess- 
ment shall  be  collected  in  the  manner  prescribed  by  law 
for  the  collection  of  general  state  and  county  taxes,  the  law 
for  the  collection  of  taxes  is  referred  to  for  the  manner  of 
collecting,  and  not  for  what  shall  be  collected,  and  in  such 
case  the  person  collecting  the  assessment  can  not  collect  a 
penalty  for  non-payment,  as  5  per  cent,  for  example,  merely 


SECTIONS    FIFTY    AND    FIFTY-ONE       MarchVmf1  &S  amended       213 


because  the  revenue  law  referred  to  for  the  manner  of  mak- 
ing the  collection,  authorizes  such  a  penalty.  [Bucknall  v. 
Story,  36  Cal.  67.]  It  is  otherwise,  however,  when  the  street 
work  act  itself  authorizes  the  collection  of  such  penalty. 

It  will  be  noticed  that  section  49  provides  that  "all"  pro- 
visions of  law  in  reference  to  the  sale  and  redemption  of 
property  for  delinquent  state  and  county  taxes,  in  force  at 
any  given  time,  shall  also  then,  as  far  as  the  same  are  not 
in  conflict  with  this  act,  be  applicable  to  the  sale  and 
redemption  of  property  for  delinquent  assessments  here- 
under." 

SUCTION  50.  When  sufficient  money  is  in  the  hands  of  the  city  treasurer,  in 
tin-  fund  voted  for  the  proposed  work  or  improvement,  to  pay  the  total  cost 
for  damages,  MS  well  as  for  the  cost  of  doing  the  work,  and  all  other  expen- 
ses connected  therewith,  ii  shall  be  the  duty  of  the  commissioners  to  notify 
tlie  owner,  possessor  or  occupant  of  the  premises  damaged,  and  to  whom 
damages  have  been  awarded,  that  a  warrant  has  been  drawn  for  the  pay- 
ment of  the  same,  which  can  be  received  at  the  office  of  such  commission- 
ers. Such  notification  may  be  made  by  depositing  a  notice,  postage  paid, 
in  the  post  office,  addressed  to  his  last  known  place  of  residence.  If,  after 
the  expiration  of  three  days  after  the  service  or  deposit  of  the  notice  in  the 
post  office,  lie  shall  not  have  applied  for  such  warrant,  the  same  shall  be 
drawn  and  deposited  with  the  city  treasurer,  to  be  delivered  to  him  upon 
demand.  [Amendment  approved  March  9,  1893,  statutes  '93,  p.  94.] 

SECTION  51.  If  the  owner  of  any  premises  damaged  neglects  or  refuses, 
for  ten  days  after  the  warrant  has  been  placed  in  the  hands  of  the  city 
treasurer,  subject  to  his  demand,  to  accept  the  same,  the  city  council  may 
cause  proceedings  to  be  commenced,  in  the  name  of  the  city,  to  condemn 
said  premises,  as  provided  by  law  under  the  right  of  eminent  domain.  The 
ordinance  or  resolution  of  intention  shall  be  conclusive  evidence  of  the 
necessity  of  the  same.  Such  proceedings  shall  have  precedence,  so  far  as 
the  business  of  the  court  will  permit,  and  any  judgment  for  damages  therein 
rendered  shall  be  payable  out  of  the  special  fund  in  the  treasury  for  that 
purpose.  At  any  time  after  the  trial  and  judgment  entered,  or  pending 
appeal,  the  court  may  order  the  city  treasurer  to  set  apart  in  the  city  treas- 
ury a  sufficient  sum  from  said  fund  to  answer  the  judgment,  and  thereupon 
may  authorize  or  order  the  municipality  to  proceed  with  the  proposed  work 
or  improvements.  In  case  of  a  deficiency  in  said  fund  to  pay  the  whole 
assessed  judgment  and  damages,  the  city  council  may,  in  its  discretion, 
order  the  balance  thereof  to  be  paid  out  of  the  general  fund  of  the  treasury, 
or  to  be  distributed  by  the  commissioners  over  the  property  assessed  by  a 
supplementary  assessment;  but  in  the  last  named  case,  in  order  to  avoid 
delay,  the  city  council  may  advance  such  balance  out  of  any  available  fund 
in  the  treasury,  and  reimburse  the  same  from  the  collection  of  assessments. 
The  treasurer  shall  pay  such  warrants  in  the  order  of  their  presentation; 
provided,  that  warrants  for  damages  and  for  costs  of  performing  the  work 
shall  have  priority  over  warrants  for  charges  and  expenses,  and  the  treas- 
urer shall  see  that  sufficient  money  remains  in  the  fund  to  pay  all  warrants 
of  the  first  class  before  paying  any  of  the  second.  The  provisions  of  section 


214    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

one  thousand  two  hundred  and  fifty-one  of  the  Code  of  Civil  Procedure, 
requiring  the  payment  of  damages  within  thirty  days  after  the  entry  of 
judgment,  shall  not  apply  to  damages  rendered  in  proceedings  under  this 
act.  [Amendment  approved  March  9,  1893,  statutes  '93,  p.  95.} 

Compensation  must  be  made  in  advance,  or  a  fund  must 
be  provided,  out  of  which  compensation  must  be  made  so 
soon  as  the  amount  can  be  determined.  fColton  v.  Rossi,  9 
Cal.  595.] 

SECTION  52.  All  other  provisions  contained  in  the  act  to  which  this  is 
amendatory,  and  which  provisions  are  not  in  conflict  herewith,  shall  apply 
to  all  matters  herein  contained.  All  proceedings  in  any  work  or  improve- 
ment, such  as  is  provided  for  in  this  act,  already  commenced  and  now  in 
progress  under  another  act  now  in  force,  or  by  virtue  of  an  ordinance  or 
resolution  of  intention  heretofore  passed,  may,  from  any  stage  of  such  pro- 
ceedings already  commenced  and  now  in  progress,  be  continued  under  this 
act  by  resolution  of  the  city  council.  The  said  work  or  improvement  may 
then  be  conducted  under  the  provisions  of  this  act,  with  full  force  and  effect 
in  all  respects  from  the  stage  of  such  proceedings  at  and  from  which  such 
resolution  or  ordinance  shall  declare  the  intention  to  have  such  work  done 
or  improvement  cease  under  such  other  acts  or  ordinances  and  continued 
under  this  act;  and  from  such  election  so  made  all  proceedings  theretofore 
had  are  hereby  ratified,  confirmed  and  made  valid,  and  it  shall  be  unneces- 
sary to  renew  or  conduct  over  again  any  proceedings  prior  to  the  passage  of 
this  act.  [Amendment  approved  March  9,  1893,  statutes  '93,  p.  95. \ 

Section  52,  like  section  47,  supra,  is  ambiguous  in  this, 
that  it  does  not  clearly  appear  which  act  is  referred  to  when 
it  is  declared  that  "all  other  provisions  contained  in  the  act 
to  which  this  is  amendatory  *  *  *  shall  apply  to  all 
matters  herein  contained."  By  the  act  of  March  31,  1801, 
(statutes  '91,  page  461,)  section  52  was  added  to  and  made  a 
part  of  the  act  of  March  18,  1885,  and  by  the  act  of  March 
9,  1893,  section  52  was  amended,  but  it  still  remains  a  part 
of  the  act  of  March  18,  1885,  having  been  first  imbedded 
therein  by  the  said  act  of  March  31,  1891;  and,  from  and 
after  the  31st  day  of  March,  1891,  the  act  of  March  18, 1885, 
is  to  be  read  as  though  section  52 — as  it  stood  prior  to  the 
amendment  of  1893 — had  always  been  a  part  thereof;  and 
from  and  after  March  9,  1893,  the  said  act  of  March  18, 
1885,  is  to  be  read  as  though  section  52 — as  amended  by  the 
act  of  March  9,  1893 — had  always  been  a  part  thereof.  "A 
statute  which  is  amended  is  thereafter,  and  as  to  all  acts  sub- 
sequently done,  to  be  construed  as  if  the  amendments  had 
always  been  there,  and  the  amendment  itself  so  thoroughly 
becomes  a  part  of  the  original  statute  that  it  must  be  con- 
strued in  view  of  the  original  statute  as  it  stands  after  the 
amendments  are  introduced,  and  the  matters  superseded  by 
the  amendments  eliminated."  [Endlich  on  the  Interpreta- 


SECTION    FIFTY-TWO  March^TsSf 


tion  of  Statutes,  §  204.]  This  is  undoubtedly  the  correct 
rule  of  interpretation,  but,  by  regarding  section  52  as  it  now 
stands  as  being  a  part  of  the  act  of  March  18,  1885,  from 
and  after  the  9th  day  of  March,  1893,  the  section  speaks 
from  out  of  the  said  act  of  March  18, 1885 — as  the  same  has 
been  amended  from  time  to  time  since — and  according  to 
the  logical  result  of  the  application  of  the  above  rule  of 
interpretation,  the  act  spoken  of  in  section  52,  *nd  whose 
provisions  are  continued  in  force  by  this  section,  must  be 
some  net  of  which  the  act  of  March  18, 1885,  is  amendatory. 
But,  as  the  act  of  March  18,  1885,  is  not  amendatory  of  any 
act,  the  logical  consequence  of  the  application  of  said  rule 
of  interpretation  does  not  express  the  legislative  intent, and 
the  act  referred  to,  the  provisions  of  which  are,  by  section 
52,  made  applicable  to  all  matters  contained  therein,  must 
be  either  the  act  of  March  18,  1885,  itself,  as  it  reads  with- 
out the  added  sections — sections  38  to  53,  inclusive — or  else 
it  must  be  the  act  of  March  31,  1891,  by  which  these  new 
sections  were  first  added.  The  act  of  March  9,  1893,  by 
which  sections  38-53  were  amended,  purports  to  be  amend- 
atory of  the  said  act  of  March  31,  1891.  But  it  cannot  be 
that  the  legislature  intended  by  section  52  to  declare  that 
"all  provisions  of  the  act  of  March  31,  1891,  which  are  not 
in  conflict  herewith,  shall  apply  to  all  matters  herein  con- 
tained,"  because  the  act  of  March  31,  1891,  purports  to  add 
to  the  act  of  March  18,  1885,  sections  38-53,  and  the  act  of 
March  9,  1893,  purports  to  amend  these  added  sections, 
and  does  so  in  such  a  complete  manner  that  the  act 
of  March  9,  1893,  must  be  regarded  as  superseding  and,  by 
implication,  repealing  all  of  the  act  of  March  31,  1891.  It 
seems  to  the  author,  therefore,  that  when  section  52  declares 
that  "all  other  provisions  contained  in  the  act  to  which  this 
is  amendatory  *  *  *  shall  apply  to  all  matters  herein 
contained,"  the  legislature  intended  thereby  to  declare  that 
"all  other  provisions  contained  in  the  act  of  March  18th, 
1885 — to  which  act  this  is  amendatory — and  which  provi- 
sions are  not  in  conflict  with  sections  38  to  53,  inclusive, 
shall  apply  to  all  matters  in  sections  38  to  53  contained." 

There  is  another  ambiguity  in  this  part  of  section  52. 
The  section  declares  that  all  other  provisions  contained  in 
the  act  to  which  this  is  amendatory,  etc.,  shall  apply  to  all 
matters  "herein  contained."  What  does  the  phrase,  "  herein 
contained,"  refer  to?  Does  it  refer  to  the  matters  contained 
in  this  section,  i.e.,  section  52;  or  to  the  matters  contained  in 
the  act  of  March  18, 1885,  as  amended  up  to  March  9, 1893;  or 
does  it  refer  to  the  matters  contained  in  sections  38  to  53 
only  of  the  act  of  March  18,  1885 — as  these  sections  were 


216          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

added  to  the  said  act  of   March  18,  1885,  and  subsequently 
amended? 

It  would  seem  too  narrow  a  construction  to  limit  the 
phrase  "all  matters  herein  contained,'7  to  "all  matters  con- 
tained in  this  section — section  52."  And,  it  is  obviously 
too  broad  a  construction  to  construe  the  phrase  as  meaning 
all  matters  contained  in  the  act  in  which  section  52  is 
imbedded  as  a  part  thereof,  because  this  act,  according  to 
the  cannon  of  interpretation,  quoted  supra,  horn  Endilich  on 
the  Interpretation  of  Statutes,  is  the  act  of  March  18,  1885, 
itself,  and  it  was  obviously  not  the  intent  of  the  legislature 
to  declare  that  "all  provisions  contained  in  the  act  of  March 
18,  1885,  *  *  *  *  shall  apply  to  all  matters  contained 
in  the  act  of  March  18,  1885."  It  is  most  probable  therefore 
that  the  legislature  intended  by  this  phrase  to  include  all 
matters  contained  in  that  portion  of  the  act  of  March  18, 
1885,  which  was  added  by  the  act  of  March  31,  1891,  which 
was  amended  by  the  act  of  March  9,  1893.  So  that  the  first 
sentence  of  section  52  should  be  construed  as  reading  as 
follows:  "All  other  provisions  contained  in  the  act  of 
March  18,  1885,  and  which  are  not  in  conflict  with  the 
provisions  of  sections  38  to  53,  inclusive,  shall  apply  to  all 
matters  contained  in  said  sections  38  to  53,  inclusive." 
However,  the  section  is  so  ambiguous  and  uncertain  as  to 
almost  defy  interpretation.  It  is  apparent  that  the 
draughtsman  who  drew  the  act  must  have  been  deficient  in 
imagination.  He  could  not  have  had  clearly  presented  to 
his  mind  the  duality  of  the  act  which  he  was  drafting, — he 
could  not  clearly  have  separated  in  his  mental  vision  those 
portions  of  the  act  which,  when  the  act  took  effect,  became 
a  part  of  the  original  act — the  act  of  March  18,  1885, — and 
spoke  out  from  that  act  as  parts  thereof, — from  those  por- 
tions of  the  act  which  did  not  thus  become  imbedded  in 
the  act  of  March  18,  1885, — the  last  section,  for  example, — 
section  17  of  the  act  of  March  9,  1893,  which  declares  that 
"This  act  (the  act  of  March  9,  1893)  shall  take  effect  and 
be  in  force  immediately  after  its  passage." 

SECTION  53.    The  provisions  of  this  act  shall   be  liberally  construed  to 
permit  the  objects  thereof.     [Statutes  1893,  page  96.} 
[Section  53  was  amended  by  the  act  of  March  9, 1893,  statutes  1893,  p.  96.] 


OF  THE 
UNIVERSITY 

OF 


Improvement  Bond  tfct  of  1893, 


An  Act  to  provide  a  system  of  Street  Improvement  Bonds  to 
represent  certain  assessments  for  the  cost  of  street  work  and 
improvement  within  municipalities,  and  also  for  the  pay- 
ment of  such  bonds. 

[Approved  February  27,  1893.  j 

The  people  of  the  state  of  California,  represented  in  senate  and  assembly, 
do  enact  as  follows  : 

SECTION  1.  Wherever  in  this  act  the  phrase  "Street  Work  Act"  is  used, 
it  means  and  shall  be  taken  to  mean  the  act  entitled  "An  act  to  provide 
for  work  upon  streets,  lanes,  alleys,  courts,  places  and  sidewalks,  and  for 
construction  of  sewers  within  municipalities,"  approved  March  eighteen, 
eighteen  hundred  and  eighty-five,  and  all  acts  amendatory  thereof  or  sup- 
plementary thereto;  and  wherever  in  this  act  the  name  of  any  municipal 
body  or  officer  is  used,  or  any  word  or  phrase  is  used  which  is  not  herein 
expressly  defined,  it  means  and  Khull  be  taken  to  mean  such  municipal 
body  or  officer,  or  word  or  phrase  as  the  same  is  expressly  defined  in  said 
street  work  act,  and  in  all  acts  amendatory  thereof  or  supplementary 
thereto.  [Statutes  1893,  page  33.] 

The  object  of  the  act  is  clearly  declared  by  the  first  sen- 
tence of  section  2,  namely:  "Whenever  the  city  council  of 
any  municipality  in  this  state  shall  find,  upon  estimates  of 
the  city  engineer,  that  the  cost  of  any  proposed  work  or 
improvement  authorized  by  said  street  work  act,  [the  act  of 
March  18,  1885]  will  be  greater  than  one  dollar  per  front  foot 
along  each  line  of  the  street  so  proposed  to  be  improved,  includ- 
ing the  cost  of  intersection  work  assessable  upon  said  frontage, 
it  shall  have  the  power,  in  its  discretion,  to  determine  that 
serial  bonds  shall  be  issued  to  represent  the  cost  of  said  work 
or  improvement  in  the  manner  and  form  hereinafter  pro- 
vided." Or,  as  more  pithily  stated  in  its  title,  the  object  of 
the  act  is  "to  provide  a  system  of  street  improvement  bonds." 

The  act  is,  in  effect,  supplementary  to  the  Vroomari 
act  of  March  18,  1885.  The  latter  act  provides  what 
work  may  be  done  upon  streets,  and  provides  the 
machinery  for  letting  contracts  for  doing  the  work 
and  for  meeting  the  expenses  of  the  same.  The  machinery 
for  meeting  these  expenses,  as  provided  for  by  the  said 
act  of  March  18,  1885,  contemplates  cash  payments 
after  the  assessment  roll  is  made  up,  and  r  fter  the  proper 


218  STREET  WORK  LAW BOND    ACT 

proceedings  prerequisite  to  the  right  to  cash  payments, 
such  .MS  "demand,"  etc.,  have  been  had.  The  above  act  of 
Feb'y  27,  1893,  supplements  this  part  of  the  machinery  of 
the  act  of  March  18,  1885,  and  provides  different  machinery 
for  meeting  the  expenses  of  the  improvements, — machinery 
that  contemplates  the  issuance  of  serial  bonds  to  pay  for  the 
cost  of  the  work. 

Throughout  the  act,  the  provisions  of  the  street  improve- 
ment act  of  March  18,  1885,  and  of  all  acts  amendatory 
thereof  or  supplemental  thereto,  are  referred  to,  and,  by 
reference  made  a  part  of  the  act.  These  acts  are  referred 
to  under  the  general  designation  of  the  "Street  Work  Act," 
which  phrase  is,  by  section  1  of  the  act,  defined  to  be  the 
said  act  of  March  18,  1885,  and  all  acts  amendatory  thereof 
or  supplemental  thereto,  and,  by  section  6  of  the  said  act  of 
Feb'y  27, 1893,  it  is  provided  that  "all  provisions  of  the  'Street 
Work  Act/ not  inconsistent  with  the  provisions  hereof,  shall 
apply  hereto."  But  whether  said  phrase  "provisions  hereof" 
means  "provisions  of  this  section — section  six/7  or  "provis- 
ions of  this  act"  may  be  open  to  question. 

In  1891 ,  [statutes'  91,  p.  116]  by  an  act  approved  March  17, 
1891,  the  legislature  passed  an  act  similar  in  its  provisions 
to  the  above  act  of  Feb'y  27,  1893;  only,  while  the  latter 
act,  in  a  measure  stands  by  itself,  and  only  by  reference, 
incorporates  within  itself  the  provisions  of  the  general 
street  improvement  act  of  March  18,  1885,  and  the  acts 
amendatory,  thereof  or  supplemental  thereto,  the  said  act  of 
March  17,  1891,  on  the  other  hand,  tacked  its  provisions 
on  to  the  act  of  March  18.1885,by  adding  thereto  an  additional 
part  numbered  Part  IV,  consisting  of  seven  new  sections 
numbered  38  to  44,  inclusive.  (Statutes  1891,  p.  116. J  Sec- 
tion 8  of  the  act  of  Feb'y  27, 1893,  [statutes  '93,  p.  38]  expressly 
repeals  said  act  of  March  17,  1891,  except  as  to  proceedings 
theretofore  commenced  thereunder. 

It  will  be  noticed  from  a  perusal  of  the  bond  act — the 
act  of  February  27,  1893 — that  it  does  not  provide  for  the 
issuance  of  municipal  bonds,  backed  by  the  resources  of 
the  whole  city,  authorized  by  popular  vote,  and  payable  out 
of  general  taxation.  Such  municipal  bonds  are  provided 
for  by  the  municipal  indebtedness  act,  the  act  of  March  19, 
1889  [statutes  1889,  p.  399],  entitled  "An  act  authorizing 
the  incurring  of  indebtedness  by  cities,  towns,  and  munici- 
pal corporations,  incorporated  under  the  laws  of  this  state, 
for  the  construction  of  water  works,  sewers,  and  all  neces- 
sary public  improvements,  or  for  any  purpose  whatever," 
etc.,  and  the  acts  amendatory  thereof.  [See  this  munici- 
pal indebtedness  act,  infra.}  The  street  improvement  bond 


PROVISIONS    OF    BOND    ACT  Sec.  1  of  the  Act  of 

February  27,  1893.        & 

act— the  act  of  Feb'y  27,  1893— on  the  other  hand  provides 
that  each  bond  issued  under  it  shall  be  a  lien  upon  a  par- 
ticular lot  or  parcel  of  land,  each  bond  being  issued  to  rep- 
resent the  assessment  against  each  particular  lot  or  parcel 
of  land,  which  is  upon  the  list  of  unpaid  assessments,  men- 
tioned in  section  •[  of  the  act.  Each  bond  stands  by 
itself;  and  if  default  be  made  in  any  payment,  the  bond 
becomes  wholly  due  at  the  option  of  the  holder,  who  can 
immediately  collect  ivithout  suit.  The  provisions  of  the  act 
enabling  the  bond  holder  to  collect  without  suit  are  most 

important.     Under  the    general  street  improvement  act 

the  Vrooman  act  of  March  18,  1885, — the  contractor  or  his 
assignee,  after  the  issuance  of  a  warrant,  etc.,  and  after 
demand,  etc.,  brings  suit  against  the  lot  owner  as  provided 
for  in  section  12  of  that  act,  and  in  this  suit  the  lot  owner 
may  set  up  in  defense  any  facts  which  show  that  the  assess- 
ment is  void.  [See  supra  p.  141  et  seq.]  But,  when 
bonds  are  issued  under  this  street  bond  act,  the 
bond  holder  does  not  sue  the  property  owner. 
He  serves  a  written  demand  upon  the  city  treasurer,  who 
then  proceeds  to  collect  the  amount  due  on  the  bond  by 
sale  of  the  lot  in  the  same  manner  that  unpaid  state  and 
county  taxes  are  collected,  as  provided  for  in  section  5  of 
the  act.  Furthermore,  the  bonds  are,  by  section  4  of 
the  act,  made  conclusive  evidence  of  the  regularity  of  all  pro- 
ceedings previous  to  the  making  of  the  certified  list  of  unpaid 
assessments.  [See  notes  under  section  4  infra.~\  It  is 
vitally  important  therefore,  that  the  owner  who  desires  to  con- 
test the  validity  of  the  proceedings,  should  give  written  notice 
to  the  city  treasurer,  as  provided  for  by  section  4,  that  he 
desires  no  bond  to  be  issued  for  the  assessment  upon  his 
lot  or  parcel  of  land.  This  notice  will  stop  the  issuance  of 
such  bond,  and  the  contractor  or  his  assignee  will  be  com- 
pelled to  bring  suit  as  provided  for  by  section  12  of  the 
general  street  improvement  act,  and  in  this  suit  the  proper- 
ty owner  may  set  up  in  defense  any  facts  showing  the 
assessment  to  be  invalid.  Se.e^supra  Sec.  12  of  the  act  of 
March  18,  1885,  p.  141  et  seq.]  But,  if  bonds  are  issued  repre- 
senting the  assessment  against  his  lot,  and  if  the  act  be 
constitutional,  he  is  practically  remediless,  except  that  after 
sale  of  his  lot,  he  might  have  an  action  at  law  to  recover 
possession.  For  as  the  bond  holder  does  not  have  to  initi- 
ate proceedings  in  court,  but  may  collect  without  suit,  the 
property  owner  does  not  enjoy  the  advantages  of  a  defend- 
ant resisting  the  collection  of  an  illegal  assessment,  but  must 
himself  take  the  initiative.  His  only  possible  remedy  is  an 
injunction  to  enjoin  the  sale  of  his  lot.  But  even  this  rem- 


220  STKEET  WORK  LAW BOND    ACT 

edy  is  denied  to  him,  if  the  act  be  constitutional.  His 
property  having  received  the  benefit  of  the  work,  he  cannot 
go  into  a  court  of  equity  and  ask  equitable  relief.  He  who 
seeks  equity  must  do  equity.  And  this  he  cannot  do  with- 
out at  least  paying  the  reasonable  value  of  the  improvement 
to  his  lot. 

Courts  of  equity  do  not  review  the  proceeding  of  officers 
entrusted  with  the  assessment  of  property.  If  proceedings 
taken  by  them  are  void,  no  title  will  pass  by  a  sale  of  the 
real  estate,  and  the  party  claiming  to  be  injured  must  liti- 
gate his  rights  in  an  action  at  law  for  the  possession  of  the 
premises.  So  long  as  a  moral  obligation  to  pay  any  por- 
tion of  the  tax  exists,  a  court  of  equity  will  not  lend  its  aid 
to  prevent  a  cloud  upon  the  title,  but  will  leave  the  party  to 
his  remedy  at  law.  [Esterbrook  v.  O'Brien,  decided  July 
13,  1893,  33  Pac.  Rep.  765;  Weber  v.  San  Francisco,  1  Gal. 
455;  Bucknall  v.  Story,  36  Cal.  67;  Lent  v.  Tillson,  72  Gal. 
433;  See  supra  p.  143.]  And  if  after  the  sale  of  his  lot 
by  the  city  treasurer  the  property  owner  commences  eject- 
ment to  recover  possession  of  his  lot,  he  is  confronted  with 
that  provision  of  the  act  [section  4  of  the  bond  act — the  act 
of  Feb'y  27,  1893,]  which  makes  the  issuance  of  the  bonds 
conclusive  evidence  of  the  regularity  of  all  proceedings  pre- 
vious to  the  making  of  the  certified  list  of  unpaid  assess- 
ments provided  for  by  section  4  of  the  act.  So  that  the 
owner  who  thinks  he  ought  not  to  pay  the  sum  assessed 
against  his  lot,  should  see  that  no  bond  is  issued,  by  pre- 
senting to  the  city  treasurer  the  affidavit  and  certificate  of 
title,  and  notice  in  writing,  provided  for  by  section  4  of 
the  act. 

Constitutionality  of  the  Act.  The  constitutionality  of  the 
bond  act  of  Feb'y  27,  1893,  might  be  attackable  upon,  (1.) 
grounds  peculiar  to  acts  of  a  similar  nature,  or  (2.)  upon 
grounds  to  which  any  act  might  be  subject,  e.  g,,  that  the 
title  is  not  sufficient,  etc.,  or  other  defects  respecting  the 
form  of  the  act,  or  the  manner  of  its  passage.  A  brief  con- 
sideration may  be  given  to  the  question  as  to  whether  the 
act  is  open  to  objections  embraced  by  either  one  of  these 
classes  of  constitutional  grounds  of  attack,  taking  up  first 
the  second  or  broader  class,  i.  e.,  that  class  of  defects  which 
appertain  to  the  form  of  the  act,  or  the  manner  of  its  pas- 
sage or  enactment. 

(a.)  It  is  possible  that  the  act  might  be  unconstitutional 
upon  the  ground  that  it  is  violative  of  that  provision  of  sec- 
tion 24  of  article  IV  of  the  constitution,  which  declares  that 
"no  law  shall  be  revised  or  amended  by  reference  to  its  title; 
but  in  such  case  the  act  revised  or  section  amended  shall 


CONSTITUTIONALITY    OF    BOND    ACT       ^riarVn  ^°f       221 


be  re-enacted  and  published  fit  length  as  revised  or  amend- 
ed." This  provision  of  the  constitution,  and  its  possible 
applicability  to  the  act  of  March  31,  1891,  statutes  1891, 
page  461,  by  which  sections  38-53  were  added  to  the  gen- 
eral street  improvement  act  of  March  18,  1885,  as  well  as  to 
the  act  of  March  9,  1893,  statutes  1893,  page  89,  by  which 
these  added  sections  were  amended,  was  considered  in  the 
notes  to  section  38  of  said  general  street  improvement  act 
of  March  18,  1885.  [See  supra,  page  204e^seor.]And  if  the  said 
act  of  March  31,  1891,  by  which  said  sections  38-53  were 
added  to  the  act  of  March  18,  1885,  be  violative  of  this  pro- 
vision of  the  constitution,  then,  for  the  same  reason,  the 
said  bond  act  of  March  17,  1891,  by  which  Part  IV  was 
added  to  the-  act  of  March  18,  1885,  must  be  unconstitu- 
tional. But  the  act  of  March  17,  1891,  has  been  expressly 
repealed  by  the  bond  act  of  Feb'y  27, 1893,  and  the  question 
is:  Is  this  latter  act  constitutional?  It  is  true  this  act — the 
act  of  Feb'y  27,  1893 — does  not,  in  terms,  purport  to  be 
amendatory  of  any  other  act,  yet,  for  its  own  purposes,  it  does 
make  very  important  amendments  to  certain  parts  of  the 
general  street  improvement  act,  the  Vrooman  act  of  March  18, 
1885.  Thus,  for  the  purpose  of  effecting  the  objects  of  this 
act — i.  e.,  the  bond  act  of  Feb'y  27, 1893 — the  act  declares  that 
"when  the  council  shall  determine  that  serial  bonds  shall  be 
issued  to  represent  the  expenses  of  any  proposed  work  or 
improvement  under  the  street  work  act,  [i.  e.,  the  act  of 
March  18,  1885]  it  shall  so  declare  in  the  resolution  of 
intention  to  do  said  work,  and  shall  specify  the  rate  of 
interest  which  they  shall  bear,"  etc.  [Section  3  of  act  of 
Feb'y  27, 1893.]  Therefore,  for  the  purpose  of  effecting  the 
object  of  the  bond  act — the  act  of  Feb'y  27, 1893 — section  3 
of  the  Vrooman  act  of  March  18, 1885,  is,  in  effect,  amended. 
For,  section  3  of  the  act  of  March  18,  1885 — the  general 
street  improvement  act — provides  what  the  resolution  of 
intention  shall  contain.  But,  when  serial  bonds  are  to  be 
issued  to  pay  the  expenses  of  the  work,  then  section  3  of  the 
act  of  Feb'y  27,  1893 — the  bond  act — provides  that  the  reso- 
lution of  intention  shall  contain  certain  other  things;  and, 
therefore,  for  the  purpose  of  effecting  the  purposes  of  this 
act  of  Feb'y  27,  1893,  section  3  thereof,  in  effect,  amends 
section  3  of  the  general  street  improvement  act — the  Vroo- 
man act  of  March  18,  1885 — and,  according  to  a  decision  of 
the  Supreme  Court  of  Michigan,  this  seems  to  be  in  contra- 
vention of  the  said  provision  of  section  24,  article  IV  of  pur 
constitution.  The  constitution  of  Michigan  contains  a  sim- 
ilar provision,  and  in  the  case  Mok  v.  Detroit  Ass'n,  30 
Mich.  511,  the  Supreme  Court  of  Michigan,  per  Cooley,  J., 


222  STREET  WORK  LAW BOND    ACT 

held  that  an  act  to  authorize  proceedings  under  another  act, 
which  simply  refers  for  its  rule  of  action  to  a  third,  the  pro- 
visions of  the  latter  being  left  unchanged  for  their  original 
purposes,  but  modified  by  the  act  in  question  for  its  own 
purpose,  is  unconstitutional  and  void.  The  act  held  to  be 
void  in  this  case  was  one  for  the  incorporation  of  buildings 
and  savings  associations,  passed  in  1869.  It  provided  that 
such  corporations  should  be  organized  under  the  provisions 
of  an  act  of  1855  for  the  incorporation  of  companies  for 
building  and  leasing  houses,  and  this  latter  act,  in  turn, 
provided  that  such  latter  corporations  should  be  organized 
under  the  provisions  of  an  act  of  1853,  for  the  incorporation 
of  mining  and  manufacturing  companies.  Thus,  the  act  of 
1869  undertook,  for  the  purposes  of  such  corporations  as  it 
itself  attempted  to  provide  for,  to  dispense  with  and  change 
some  of  the  provisions  and  requirements  of  the  act  of  1853. 
Held,  that  the  act  of  1853,  thus  indirectly  referred  to,  became, 
by  construction,  incorporated  into  and  a  part  of  the  act  of 
1869,  but  with  several  changes  and  modifications;  that  the 
act  of  1869,  therefore,  for  its  own  purposes,  amended  por- 
tions of  the  act  of  1853;  and  as  these  amendments  were  not 
made  by  re-enactment  of  the  sections  changed  or  modified, 
but  only  by  indicating  the  extent  of  the  changes,  leaving 
the  parties  concerned  in  the  act  to  fit  the  new  act  to  the  old 
as  best  they  may,  that,  therefore,  it  was  contrary  to  the  con- 
stitution and  void. 

If  this  be  a  correct  application  of  the  constitutional  pro- 
vision above  quoted, — section  24,  act  IV — it  is  difficult  to 
differentiate  this  Michigan  case  from  the  case  presented  bv 
the  bond  act, — the  act  of  Feb'y  27,  1893.  It  is  true,  that  in 
the  Michigan  case  the  act  of  1869,  held  to  be  unconstitu- 
tional, referred  to  the  act  of  1853,  mediately  and  indirectly, 
by  referring  to  the  act  of  1855,  which  in  turn,  referred  to 
the  act  of  1853.  But  this  is  inconsequential.  The  act  of 
1869  was  held  unconstitutional  because,  by  reference,  it 
made  portions  of  the  act  of  1853  a  part  of  itself,  and,  for  its 
own  purposes,  amended  portions  of  the  act  of  1853.  So  with 
the  bond  act — the  act  of  Feb'y  27,  3893 — by  reference  it 
makes  the  act  of  March  18,  1885,  and  the  acts  amendatory 
thereof  or  supplementary  thereto — designated  under  the 
general  phrase  of  "Street  Work  Act" — a  part  of  itself,  and,  at 
the  same  time,  and  for  its  own  purposes,  changes  and 
modifies  some  of  the  sections  of  the  said  act  of  March  18, 
1885, — section  3  thereof,  for  example,  as  above  pointed 
out, — but  none  of  these  sections  of  the  general  street 
improvement  act,  thus  changed  and  modified  for  the  pur- 
poses of  the  bond  act,  are  re-enacted  or  published.  See  also 


CONSTITUTIONALITY    OF    BOND    ACT       f-JbriJry* 27. 1&!*       223 

in  this  connection  the  opinion  of  Mr.  Justice  McKinstry  in 
Earle  v.  S.  F.  Board  of  Education,  55  Cal.  493-4,  where*  he 
says:  "But  if  *  *  *  the  Traylor  act  can,  for  any  pur- 
pose, be  treated  as  an  intended  amendment  of  any  portion 
of  the  Political  Code,  it  is  an  amendment  of  the  section 
thereof  with  which  it  conflicts,  to  wit:  §  1617.  *  *  *  * 
Section  24  of  article  IV  of  the  constitution  declares  that 'no 
law  shall  be  amended  by  reference  to  its  title,  but  in  such 
case,  the  section  amended  shall  be  re-enacted  and  published 
at  length.7  The  Traylor  act  is  not  a  re-enactment  of  §  1617 
of  the  Political  Code  as  amended."  In  that  case  Mr.  Justice 
McKinstry  held  that  the  Traylor  act  was  not  an  amendment 
of  any  section  of  the  Political  Code,  because  it  was  so  far  in 
conflict  with  portions  of  the  Political  Code,  as  to  operate  a 
repeal  of  these  portions,  instead  of  an  amendment  thereof, 
and  added  that  if  it  could,  for  any  purpose,  be  treated  as  an 
intended  amendment  of  any  portion  of  the  Political  Code,  it 
is  the  section  thereof  with  which  it  conflicts,  viz.,  §  1617, 
but  if  this  be  admitted,  then  it  contravenes  the  said  provision 
of  section  24  of  acticle  IV  of  the  constitution.  But  it  can- 
not be  said  that  the  bond  act — the  act  of  Feb'y  27,  1893 — 
repeals  any  portions  of  the  act  of  March  18,  1885. 

For  all  the  purposes  of  the  Vrooman  act — the  act  of 
March  18,  1885 — all  the  provisions  of  the  said  Vrooman 
act  are  left  as  they  stood  prior  to  the  enactment  of  the  bond 
act;  but,  to  effect  its  own  purposes,  the  bond  act  changes  or 
modifies  certain  provisions  of  the  said  Vrooman  act  of 
March  18,  1885,  or  adds  certain  requirements  to  them, 
without  repealing.  However,  it  is  the  author's  purpose  to 
merely  suggest  these  possible  constitutional  objections,  and 
not  to  advance  any  opinion  of  his  own,  and  such  possible 
constitutional  objections  as  might  be  raised  to  an  act  of  this 
nature,  regardless  of  its  form  or  the  manner  of  its  enact- 
ment, will  next  be  considered. 

(b.)  It  might  be  admitted  that  the  legislature  has  the 
power, — in  the  exercise  of  its  taxing  power — to  compel 
property  owners  to  pay  assessments  to  defray  the  expenses 
of  public  street  improvements, — provided  there  is  adopted 
some  principle  of  apportionment  approximating  equality 
and  uniformity,  which  can  be  referred  to  the  general 
sovereign  right  of  taxation, — and,  nevertheless,  it  might  be 
urged  that  the  legislature  has  not  the  power  to  issue  bonds 
to  defray  these  expenses,  and,  b>  making  these  bonds  a  lien 
upon  the  land  for  any  number  of  years,  thus,  in  effect, 
execute  for  the  property  owner,  in  proceedings  in  invitum, 
that  which  might  be  tantamount  to  a  mortgage  upon  his 
property. 


224  STREET  WORK  LAW BOND    ACT 

The  act  provides,  (section  4,)  that  a  separate  bond  shall 
be  issued  for  each  lot  or  parcel  of  land  assessed,  represent- 
ing upon  each  lot  or  parcel  of  land  upon  the  list  of  unpaid 
addcssments,  the  total  amount  of  the  assessment  for  such 
lot  or  parcel  of  land,  as  shown  on  such  list.  The  same  sec- 
tion likewise  provides  that  the  assessment  shall  be  a  first 
lien  upon  the  property  affected  thereby,  until  the  bond 
issued  for  the  payment  of  such  assessment,  and  the  accrued 
interest  thereon,  shall  be  fully  paid. 

In  answer  to  the  constitutional  objection  above  suggested, 
the  reply  might  be  made  that  the  act,  (section  4)  makes  it 
optional  with  each  property  owner  as  to  whether  he  shall 
elect  to  have  a  bond  issued  representing  the  assessment 
upon  his  lot  or  elect  to  allow  the  assessment  to  be 
collected  in  the  ordinary  mode  as  provided  in  the  gen- 
eral street  improvement  act, — the  act  of  March  18,  1885. 
By  section  4,  it  is  provided  that  "if  any  person  *  *  *  * 
notifies  said  treasurer,  in  writing,  that  he  desires  no 
bond  to  be  issued  for  the  assessment  upon  said  lot  or 
parcel  of  land,  then  no  such  bond  shall  be  issued  there- 
fore, and  the  payee  of  the  warrant,  or  his  assignee,  shall 
retain  the  right  for  enforcing  collection,  as  if  said  lot  or 
parcel  of  land  had  not  been  so  listed  by  the  street  superin- 
tendent.'7 On  the  other  hand,  in  rebuttal  to  this  reply,  it 
might  be  urged  that,  if  the  council  shall  determine  that 
serial  bonds  shall  be  issued  to  represent  the  cost  of  any 
proposed  work  or  improvement  authorized  by  the  said  act 
of  March  18,  1885,  the  contractors  might  for  that  reason 
put  in  bids  in  larger  amounts  than  they  otherwise  would, 
and  that  therefore,  notwithstanding  any  property  owner 
may  elect  not  to  have  issued  a  bond  representing  the  assess- 
ment upon  his  lot,  his  assessment  might  be  greater  than  it 
would  be  if  the  proceedings  were  not  had  under  this  bond 
act. 

On  the  other  hand  it  might  be  said,  in  reply  to  this  last 
objection,  as  was  said  in  Doyle  v.  Austin,  47  Cal.  353,  359, 
"As  they  (the  property  owners)  have  the  benefit  of  the 
credit,  it  is  but  just  that  they  should  pay  the  accruing 
interest,  and  any  discount  which  might  be  suffered  in  the  sale 
of  bonds."  In  this  case  of  Doyle  v.  Austin,  the  act  of  April 
1,  1872, — an  act  to  open  and  establish  a  street  in  the  city 
and  county  of  San  Francisco,  to  be  called  "Montgomery 
avenue,"  and  to  take  private  lands  therefor,  [statutes  1871-2, 
p.  911] — was  assailed  on  the  ground  that  it  was  unconsti- 
tutional. That  act  provided  [Sec.  8]  that  "all  the  damages, 
costs  and  expenses  arising  from  or  incidental  to  the  open- 
ing of  said  avenue  being  fixed  and  determined,  *  *  * 


CONSTITUTIONALITY     OF    THE    ACT      f^w*5        °*  225 


,     93 


said  board  shall  cause  to  be  -prepared  and  issued  bonds  in 
sums  of  not  less  than  one  thousand   dollars    each,  for    such 
an  amount    as  shall  be   necessary  to  pay  and  discharge  all 
said  damages,  costs  and   expenses."     By  section  11  of  that 
act  it   was   provided  that  "There  shall  be   levied,  assessed 
and  collected,  annually,  at  the  same  time  and  in  the   same 
manner  as  other  taxes  are  levied,  assessed  and  collected  in 
said  city  and  county,  a  tax  upon  lands  described  in   section 
4  of  this  act,  sufficient  to  pay  the  interest  upon  said  bonds 
as   the    same    mature.     *     *      *      There    shall    be   levied, 
assessed  and  collected  annually,  commencing  with  the  year 
1SXO,  at  the  same  time  and   in  the  same  manner,  and  upon 
the  same  lands,   and  in  accordance  with  the  same  rule  of 
assessment  upon  enhanced  values,     *     *     *     a  tax  of  one 
per  cent,  upon  each  one  hundred  dollars  valuation,  which 
shall   constitute  a  sinking  fund  for  the  redemption  of  said 
bonds."     Section    4  of  the  act   described  a  certain  district; 
and  by  section  3,  it   was   provided   that  the  lands   in   this 
district  should  be   assessed  to  pay  the  value  of  the  land 
taken,  the  damages  to  the  improvements,  and  all  other  expen- 
ses, in  proportion  to  the  benefits  accruing  to  the  several  lots 
in  said  district.     By  section  24  it  was   provided  that   "  the 
city  and  county  of    San  Francisco    shall    not  in  any  event 
whatever  be  liable  for  the  payment  of    the   bonds,  nor  any 
part  thereof."     After  deciding  that  the  act  provided  for  an 
"assessment"  to  defray  the  expenses,  and  not  for  a  "tax,"  in 
the  strict  sense,  the    court,  per  Crockett,  J.,  page  358,  con- 
tinued:   "It  is  next  objected  that  it  is  not  competent  for  the 
legislature  to  impose  upon  the  property  to  be    benefited,  a 
greater  burden  than  will  be  sufficient  to  defray  the  cost  of 
improvement,  and  it  is  said  that  under  this  act  the  property 
is  charged  not  only  with  the    actual   cost  of   improvement, 
but  with  an  additional  sum  sufficient  to  cover  the  interest 
to  accrue  on  the  bonds,  and  such  discount  as  may  be  suffered 
in  converting  them  into  cash.    But  instead  of  requiring  the 
cost  of  the  improvement  to  be  paid  in  cash  during  the  pro- 
gress or  on  the  completion  of  the  work,  the  act  provides  for 
raising  the  money  by  the  sale  of  bonds,  payable  at  a  future 
day,    the    annual    interest    on    which,    and    the    ultimate 
redemption  of  the  principal,  are  provided  for  by  an  assess- 
ment of    the  property    to   be  benefited.     We  do  not  see  on 
what  theory  it  can  be  claimed  that  by  this  process  the  prop- 
erty is  charged  with  anything    more    than  the   cost  of    the 
improvement.      The  interest  ou  the  bonds,  and  the  discount,  if 
any,  on  the  sale  of  them,  are  incidental  expenses  incurred  in 
providing  a  sufficient  fund  for  the  accomplishment  of  the  work, 
without   exacting    in    cash    from    the   property  owners  the 


226  STREET  WORK  LAW BOND    ACT 

necessary  sura.  It  is  a  provision  for  thoir  benefit,  which 
enables  them  to  pay  the  cost  of  the  improvement  in  easy 
installments,  instead  of  paying  the  whole  sum  on  the  com- 
pletion of  the  work.  As  they  will  have  the  benefit  of  the 
credit,  it  is  but  just  that  they  should  pay  the  accruing  inter- 
est, and  any  discount  which  may  be  suffered  in  the  sale  of 
bonds.  As  before  stated,  the  interest  and  discount  are  but 
incidental  expenses  of  the  enterprise,  and,  upon  principle, 
stand  upon  the  same  footing  as  the  compensation  of  the 
officers  who  superintend  it." 

SECTION  2.  Whenever  the  city  council  of  any  municipality  in  this  state 
shall  find,  upon  estimates  of  the  city  engineer,  that  the  cost  of  any  pro- 
posed work  or  improvement  authorized  by  said  street  work  act  will  be 
greater  than  one  dollar  per  front  foot  along  each  line  of  the  street  so  pro- 
posed to  be  improved,  including  the  cost  of  intersection  work  assessable 
upon  said  frontage,  it  shall  have  the  power,  in  its  discretion,  to  determine 
that  serial  bonds  shall  be  issued  to  represent  the  cost  of  said  work  or 
improvement  in  the  manner  and  form  hereinafter  provided.  Said  serial 
bonds  shall  extend  over  a  period  not  to  exceed  ten  years  from  their  date, 
and  an  even  annual  proportion  of  the  principal  sum  thereof  shall  be  pay- 
able, by  coupon,  on  the  second  day  of  January  every  year  after  their  date, 
until  the  whole  is  paid,  and  the  interest  shall  be  payable  semi-annually, 
by  coupon,  on  the  second  days  of  January  and  July,  respectively,  of  each 
year,  at  the  rate  of  not  to  exceed  ten  per  cent,  per  annum  on  all  sums 
unpaid,  until  the  whole  of  said  principal  and  interest  are  paid.  Said 
bonds  and  interest  thereon  shall  be  paid  at  the  office  of  the  city  treasurer 
of  said  municipality,  who  shall  keep  a  fund  designated  by  the  name  of 
said  bonds,  into  which  he  shall  receive  all  sums  paid  him  for  the  principal 
of  said  bonds  and  the  interest  thereon,  and  from  which  he  shall  disburse 
such  sums  upon  the  presentation  of  said  coupons;  and  under  no  circum- 
stances shall  said  bonds  or  the  interest  thereon  be  paid  out  of  any  other  fund. 
Said  city  treasurer  shall  keep  a  register  in  his  office,  which  shall  show  the 
series,  number,  date,  amount,  rate  of  interest,  payee  and  indorsees  of  each 
bond,  and  the  number. and  amount  of  each  coupon  of  principal  or  interest 
paid  by  him,  and  shall  cancel  and  file  each  coupon  so  paid.  [Statutes  1893, 
p.  33.] 

SECTION  3.  When  said  city*  council  shall  determine  that  serial  bonds 
shall  be  issued  to  represent  the  expenses  of  any  proposed  work  or  improve- 
ment under  said  street  work  act,  it  shall  so  declare  in  the  resolution  of 
intention  to  do  said  work,  and  shall  specify  the  rate  of  interest  which  they 
shall  bear.  The  like  description  of  said  bonds  shall  be  inserted  in  the 
resolution  ordering  the  work,  in  the  resolution  of  award,  and  in  all  notices 
of  said  proceedings  required  by  said  street  work  act  to  be  either  posted  or 
published ;  and  also  a  notice  that  a  bond  will  issue  to  represent  each 
assessment  of  fifty  dollars  or  more  remaining  unpaid  for  thirty- days  after 
the  date  of  the  warrant,  or  five  days  after  the  decision  of  said  council  upon 
an  appeal,  and  describing  the  bonds,  shall  be  included  in  the  warrant  pro- 
vided for  in  section  nine  of  said  street  work  act.  [Statutes  1893,  p.  34.] 


FORM    OF    BOND  %SS£!f%i&A*«    227 

SECTION  4.  After  the  full  expiration  of  thirty  days  from  the  date  of  the 
warrant,  or  if  an  appeal  be  taken  to  the  city  counci',  as  provided  in  section 
eleven  of  said  street  work  act,  then  five  days  after  the  final  decison  of  said 
council,  and  after  the  street  superintendent  shall  have  recorded  the  return 
as  provided  in  section  10  of  the  same  act,  the  street  superintendent  shall  make 
and  certify  to  the  city  treasurer  a  complete  list  of  all  assessments  unpaid, 
which  amount  to  fifty  dollars  or  over  upon  any  assessment  or  diagram  num- 
ber ;  and  said  treasurer  shall  thereupon  make  out,  sign  and  issue  to  the  con- 
ractoror  his  assigns,  payee  of  the  warrant  and  assessment,  a  separate  bond, 
representing  upon  each  lot  or  parcel  of  land  upon  said  list  the  total  amount 
of  the  assessments  against  the  same,  as  thereon  shown.  And  if  said  lot  or 
pan-el  of  land  is  described  upon  said  assessment  and  diagram  by  its  num- 
ber or  block,  or  both,  and  is  also  designated  by  its  number  or  block,  or 
both,  upon  the  official  map  of  said  municipality,  or  upon  any  map  on  file 
in  the  office  of  the  county  recorder  of  the  county  in  which  said  municipal- 
ity is  situated,  then  it  shall  be  in  said  bond  a  sufficient  description  of  said 
lot  or  parcel  of  land  to  designate  it  by  said  number  or  block,  or  both,  as  it 
appears  on  said  ofi'icial  or  recorded  map.  Said  bond  shall  be  substantially 
in  the  following  form: 

STREET    IMPROVEMENT    BOND. 

Series  (designating  it),  in  the  city  (or  other  form  of  the  municipality)  of 
(naming  it). 

$ ioiT  No. . 

I'nder  and  by  virtue  of  an  act  of  the  legislature  of  the  state  of  California 
(title  of  this  act),  I,  out  of  the  fund  for  the  above  designated  street 

improvement  bonds,  series  ,  will  pay  to ,  or  order,  the 

sum  of  —  —  ($ ),  with  interest  at  the  rate  of per  cent. 

per  annum,  all  as  is  hereinafter  specified,  and  at  the  office  of  the 

treasurer  of  the of ,  state  of  California.  This  bond  is 

issued  to  represent  the  cost  of  certain  street  work  upon ,  in  the 

—  of  —  ,  as  tlje  same  is  more  fully  described  in  assessment 

number ,  issued  by  the  street  superintendent  of  said , 

after  his  acceptance  of  said  work,  and  recorded  in  his  office.  Its  amount 
is  the  amount  assessed  in  said  assessment  against  the  lot  or  parcel  of  land 

numbered  therein,  and  in  the  diagram  attached  thereto,  as  number , 

and  which  now  remains  unpaid,  but  until  paid,  with  accrued  interest,  is  a 
first  lien  upon  the  property  affected  thereby,  as  the  same  is  described  herein, 
and  in  said  recorded  assessment  with  its  diagram,  to  wit:  the  lot  or  parcel 
of  land  in  said of ,  county  of ,  state  of  California, 


This  bond  is  payable  exclusively    from  said  fund,  and    neither    the 
municipality  nor  any  officer  thereof  is  to  be  holden  for  payment  otherwise 

of  its  principal  or  interest.     The  term  of  this  bond  is : —  years  from 

its  date,  and  at  the  expiration  of  said  time  the  whole  sum  then  unpaid 
shall  be  due  and  payable ;  but  on  the  second  day  of  January  of  each  year 
after  its  date  an  even  annual  proportion  of  its  whole  amount  is  due  and 
payable,  upon  presentation  of  the  coupon  therefor,  until  the  whole  is  paid, 

with   all  accrued  interest  at  the  rate  of per  centum  per  annum. 

The  interest  is  payable  semi-annually,  to  wit,  on  the  second  days  of  Jan- 
uary and  of  July  in  each  year  hereafter,  upon  presentation  of  the  coupons 


228  STREET  WORK  LAW BOND    ACT 

therefor,  the  first  of  which  is  for  the  interest   from  date  to  the  next  second 

day  Of _,  and  thereafter  the    interest  coupons  are  for  semi-annual 

interest,  except  the  last,  which  is  for  interest  from  the  semi-annual  pay- 
ment next  preceding  and  to  the  date  of  the  final  maturity  of  this  bond. 
Should  default  be  made  in  the.annual  payment  upon  the  principal,  or  in 
any  payment  of  interest,  from  the  owner  of  said  lot  or  parcel  of  land,  or 
anyone  in  his  behalf,  the  holder  of  this  bond  is  entitled  to  declare  the 
whole  unpaid  amount  to  be  due  and  payable,  and  to  have  said  lot  or  par- 
cel of  land  advertised  and  sold  forthwith,  in  the  manner  provided  by  law 
for  sale  of  land  assessed  for  state  and  county  taxes  delinquent  in  the  pay- 
ment thereof. 

At  said of  ,  this day  of ,  in  the  year 

one  thousand hundred  and . 


City  Treasurer  of  the of 


Provided,  that  in  case  the  amount  of  unpaid  assessments  upon  any  lot 
or  parcel  of  land  shall  be  less  than  fifty  dollars,  then  the  same  shall  be 
collected  as  is  hereinbefore  provided  in  part  one  of  said  street  work  act. 

Provided,  also,  that  if  any  person,  or  his  authorized  agent,  shall  at  any 
time  before  the  issuance  of  the  bond  for  said  assessment  upon  his  lot  or 
parcel  of  land,  present  to  the  city  treasurer  his  affidavit,  made  before  a 
competent  officer,  that  he  is  the  owner  of  a  lot  or  parcel  of  land  in  said 
list,  accompanied  by  the  certificate  of  a  searcher  of  records,  that  he  is  such 
owner  of  record,  and  with  such  affidavit  and  certificate,  such  person 
notifies  said  treasurer,  in  writing,  that  he  desires  no  bond  to  be  issued  for 
the  assessments  upon  said  lot  or  parcel  of  land,  then  no  such  bond  shall 
be  issued  therefor,  and  the  payee  of  the  warrant,  or  his  assigns,  shall 
retain  his  right  for  enforcing  collection,  as  if  said  lot  or  parcel  of  land  had 
not  been  so  listed  by  the  street  superintendent.  The  bonds  so  issued  by  said 
treasurer  shall  be  payable  to  the  party  to  whom  they  issue,  or  order,  and 
shall  be  serial  bonds,  as  is  hereinbefore  described,  and  shall  bear  interest 
at  the  rate  specified  in  the  resolution  of  intention  to  do  said  work.  They 
shall  have  annual  coupons  attached  thereto,  payable  in  annual  order,  on 
the  second  day  of  January  in  each  year  after  the  date  of  the  bond,  until 
all  are  paid,  and  each  coupon  shall  be  for  an  even  annual  proportion  of  the 
principal  of  the  bond.  They  shall  have  semi-annual  interest  coupons  thereto 
attached,  the  first  of  which  shall  be  payable  upon  the  second  day  of  Jan- 
uary or  July,  as  the  case  may  be,  next  after  its  date,  and  shall  be  for  the 
interest  accrued  at  that  time,  and  the  last  of  which  shall  be  for  the 
amount  of  interest  accruing  from  the  second  day  of  January  or  July,  as 
the  case  may  be,  next  preceding  the  maturify  of  said  bonds  to  the 
maturity  thereof.  The  city  treasurer  shall,  in  addition  to  his  other  duties 
in  the  premises,  report  all  coupon  payments  of  principal  upon  said  bonds 
to  the  street  superintendent,  who  shall  forthwith  indorse  the  same  upon 
the  margin  of  the  record  of  the  assessment  to  the  credit  of  which  the  same 
is  paid,  and  said  assessment  shall  be  a  first  lien  upon  the  property  affected 
thereby,  until  the  bond  issued  for  the  payment  thereof,  and  the  accrued 
interest  thereon,  shall  be  fully  paid.  Said  bonds,  by  their  issuance,  shall 
be  conclusive  evidence  of  the  regularity  of  all  proceedings  thereto  under 
said  street  work  act  and  this  act,  previous  to  the  making  of  the  certified 
list  of  all  assessments  unpaid  to  the  amount  of  fifty  dollars  or  over  by  the 


EVIDENCE    OF    REGULARITY       ||cb8ru4a^d275  <*£<*  of       229 


street  superintendent,  to  the  city  treasurer,  and  of  the  validity  of  said  lien, 
up  to  the  date  of  said  list.     [Statutes  1893,  page  34.] 

This  section  purports  to  make  the  bonds,  by  their 
issuance,  conclusive  evidence  of  the  regularity  of  all  pro- 
ceedings thereto  previous  to  the  making  by  the  superin- 
tendent of  streets  of  the  certified  list  of  unpaid  assessments; 
and  also  conclusive  evidence  of  the  validity  of  the  lien,  up 
to  the  date  of  said  list.  How  far  the  legislature  has  the 
constitutional  power  to  make  these  bonds  conclusive  evi- 
dence of  the  regularity  of  such  proceedings,  and  of  said 
lien,  is  a  question  which  lies  outside  the  plan  of  this  book, 
and  therefore  will  not  receive  that  attention  here  which  its 
importance  would  otherwise  demand  in  a  work  upon  the 
general  principles  of  municipal  corporation  law  in  relation 
to  the  improvement  of  streets.  A  correct  statement  of  the 
rule  upon  this  matter  is,  perhaps  as  follows:  The  legis- 
lature has  the  power  to  declare  that  a  neglect  to  perform 
any  act,  which  it  has  the  power  to  dispense  with  in  the 
outset,  will  not  affect  the  validity  of  the  lien,  and,  therefore, 
it  has  the  power  to  declare  that  the  bonds  shall  be  conclu- 
sive evidence  of  the  due  performance  of  such  acts  as  it 
may  thus  dispense  with  at  the  outset;  but,  as  to  those 
things  which  the  legislature  can  not  dispense  with,  e.  g., 
notice,  actual  or  constructive,  to  the  property  owner  that 
his  property  is  liable  to  be  become  charged  with  an  assess- 
ment,— the  legislature  cannot  make  the  bonds  conclusive 
evidence  that  such  things  were  done.  It  may  make  the 
bonds  conclusive  evidence  as  to  regularity  in  respect  to  the 
manner  of  doing  these  necessary  things,  but  may  not  make 
the  bonds  conclusive  evidence  that  these  things  were,  in 
in  fact,  done.  [See  McCready  v.  Sexton,  29  Iowa,  356; 
Strode  r.  Washer,  (Or.)  16  Pac.  Rep.  926;  Joslyn  v.  Rock- 
well, 128  N.  Y.  334;  Cooley  on  Taxation,  (ed.  1886)  521; 
Marx  v.  Hawthorn,  13  Sup.  Ct.  Rep.  508;  Cooley's  Constitu- 
tional Limitations  (3rd  ed.)  page  369;  Desty  on  Taxation, 
Vol.  II  p.  953.] 

SECTION  5  AVhenever,  through  the  default  of  the  owner  of  any  lot  or 
parrel  of  land  to  represent  the  assessment  upon  which  such  bond  has  been 
issued,  any  payment,  either  upon  the  principal  or  of  the  interest,  shall 
not  be  made  when  the  same  is  due,  and  the  holder  of  the  bond  thereupon 
demands,  in  writing,  that  the  said  city  treasurer  proceed  to  advertise  and 
sell  said  lot  or  parcel  of  land,  as  herein  provided,  then  the  whole  bond,  or 
its  unpaid  remainder,  with  its  accrued  interest,  shall  become  due  and  pay- 
able immediately,  and  on  the  day  following  shall  become  delinquent;  and 
the  city  treasurer  shall  have,  and  shall  act  thereafter  with,  all  the  powers 
and  duties  of  tho  tax  collector  in  the  collection  of  unpaid  state  and  county 


230  STREET  W.ORK  LAW BOND    ACT 

taxes,  and  shall  forthwith  proceed  to  advertise  and  sell  said  lot  or  parcel  of 
land  by  proceedings  in  all  respects  the  same  as  are  provided  by  law  for  the 
collection  of  delinquent  state  and  county  taxes.  All  such  provisions  and 
proceedings,  after  taxes  have  become  delinquent,  including  the  certificate 
of  sale,  the  right  of  redemption,  and  the  deed,  with  the  respective  costs 
thereof,  are  hereby  made  applicable  to  this  case.  [Statutes  1893,  p.  36.] 

Where  a  street  improvement  act  refers  to  the  law  for  the 
collection  of  delinquent  state  and  county  taxes  for  the 
manner  in  which  the  street  assessment  is  to  be"collected,the  law 
for  the  collection  of  taxes  is  referred  to  as  providing  simply 
the  manner  of  collecting,  and  not  what  shall  be  collected; 
and,  therefore,  in  such  case,  a  percentage  as  a  penalty  for 
delinquencies  can  not  be  added,  simply  because  the  general 
revenue  law  thus  referred  to,  allows  the  collection  of  such 
penalty  where  a  tax  has  become  delinquent.  [Bucknall 
v.  Story,  36  Gal.  67.] 

SECTION  6.  Whenever  any  railroad  track  or  tracks  of  any  description 
exists  upon  any  street  or  streets  on  which  the  city  council  has  ordered 
word  to  be  done  or  improvements  made,  excepting  therefrom  such  por- 
tions as  is  required  by  law  to  be  kept  in  order  or  repair  by  any  person  or 
company  having  railroad  tracks  thereon,  the  said  council  may,  at  any  time 
thereafter,  order  such  person  or  company  to  perform  upon  said  excepted 
portion  th.e  work  or  improvements,  similar  in  all  respects  to  that  already 
ordered  to  be  performed  under  the  same  specifications  and  superintendence, 
with  the  same  materials,  within  the  same  time,  and  to  the  like  satisfaction 
and  acceptance.  Thereupon  it  shall  be  the  duty  of  the  clerk  of  said  council 
to  deliver  immediately  a  copy  of  such  order,  certified  by  him,  to  such  per- 
son or  company,  and  to  make  and  preserve  in  his  office  a  certificate  of  such 
delivery,  its  date,  and  upon  whom  made.  Should  such  person  or  company, 
for  thirty  days,  or  within  such  extension  of  time  as  the  city  council  may 
grant,  thereafter  refuse  or  neglect  to  make  or  have  made  such  work  or 
improvement  in  the  manner  or  time  ordered,  it  shall  be  the  duty  of  the 
city  council  to  have  such  work  or  improvement  performed,  and  such 
refusal  or  neglect  punished  in  the  manner  provided  by  law.  Within  fifteen 
days  after  receiving  the  certified  copy  of  said  order,  such  person  or  com- 
pany may  file  with  the  clerk  of  said  council  a  written  assumption  of  the 
performance  of  said  work  or  improvement,  according  to  the  order,  or  a 
request  to  the  council  to  have  such  work  or  improvement  performed,  for 
and  at  the  expense  oi  such  person  or  company,  in  the  manner  herein  pro- 
vided. The  failure  to  file  such  instrument  within  said  time  shall  be  taken 
and  deemed  to  be  a  refusal  to  comply  with  the  order.  Upon  reception  of 
said  assumption  of  the  direct  performance  of  said  work  or  improvement, 
the  city  council  shall  take  no  further  proceedings  in  the  matter,  unless 
such  person  or  company  neglects  or  fails  for  thirty  days,  or  such  further 
time  as  the  council  may  grant,  to  comply  with  the  provisions  of  the  order. 
But  if  such  person  or  company  files  the  said  request  that  the  said  council 
have  such  work  or  improvement  performed,  or  fails  to  perform  said  work 
within  thirtv  days, 'or  within  such  further  time  as  the  council  may  grant, 
then  said  city  council  may  pass  an  ordinance  of  intention  to  perform  said 
work,  which  ordinance  shall  specify  the  work  to  be  performed,  and  a 


IMPROVEMENTS    BY  STREET  RAILROAD       f^f  ^of       231 


statement  that  unless  within  thirty  days  after  the  recording  of  the  return 
of  the  warrant,  or  within  five  days  aftei  the  final  decision  of  the  council  on 
an  appeal,  the  said  person  or  company  shall  pay  the  cost  of  said  work,  or 
the  street  superintendent  of  said  city  shall  issue  bonds  to  represent  the  cost  of 
said  work,  stating  also  that  the  cost  of  said  work,  in  case  bonds  shall  issue, 
shall  be  paid  in  ten  yearly  installments,  and  also  the  rate  of  interest  (not 
to  exceed  ten  per  cent,  per  annum)  that  the  same  shall  bear.  The  subse- 
quent procedure  shall  be  as  provided  by  the  "street  work  act."  A  similar 
statement  shall  also  be  incorporated  in  all  notices  required  to  be  posted  or 
published  by  the  provisions  of  the  ''street  work  act;"  also  in  the  ordinance 
or  resolution  ordering  the  work,  advertisement  for  proposals,  and  in  the 
contract.  Whenever  the  person  or  company  owning  any  such  railroad 
shall  not  have,  within  thirty  days  after  the  recording  of  the  return  of  the 
warrant,  or  within  five  days  after  the  final  decision  of  the  council  on  an 
appeal,  paid  the  cost  of  such  work,  the  street  superintendent  shall  issue  to 
tin-  contractor,  or  his  assigns,  bonds  for  the  amount  of  such  cost,  which 
shall  describe  the  franchise,  tracks,  and  roadbed  along  or  between  which 
said  work  has  been  performed,  and  describing  the  same  as  upon  the 
iiient  and  diagram,  giving  its  assessment  number.  Such  bonds  shall 
also  describe  the  work  performed,  giving  the  total  amount  of  the  cost  of 
such  work,  the  name  of  the  owner  of  said  railroad,  the  number  of  install- 
ments in  which  the  cost  of  the  work  is  to  be  paid,  and  the  rate  of  interest 
which  the  deferred  payments  shall  bear.  Said  bonds  shall  be  in  sums  of 
not  less  than  one  hundred  dollars  or  more  than  one  thousand  dollars,  and 
shall  recite  that  the  total  amount  of  the  cost  of  such  work,  together  with 
the  interest  thereon,  as  represented  in  said  bonds,  is,  except  state,  county 
and  municipal  taxes,  a  first  lien  upon  all  the  track,  roadbed,  switches  and 
franchises  of  said  railroad  lying  within  the  corporate  limits  of  the  city  or 
town,  on  any  part  of  which  said  work  has  been  performed.  Said  street 
superintendent  shall  also  keep  a  record  of  such  bonds,  as  required  by  sec- 
tion eighteen  of  the  "street  work  act."  Whenever  bonds  have  been  issued, 
as  herein  provided,  the  same,  together  with  the  cost  of  such  work  and  the 
interest  thereon,  shall  be,  except  state,  county  or  municipal  taxes,  a  first 
lien  upon  all  the  tracks,  roadbed,  switches  and  franchises  of  said  railroad 
within  the  corporate  limits  of  the  city  or  town,  on  any  part  of  which  said 
work  lias  been  performed.  Sections  four  and  five  of  this  act,  regarding  the 
form,  issuance  and  foreclosure  of  street  bonds  and  the  sale  of  property 
described  therein,  shall  apply  hereto,  except  that  the  wrork  required  to  be 
performed  by  the  treasurer  by  said  sections  shall  be  performed  by  the  street 
superintendent,  in  so  far  as  the  bonds  for  the  paving  of  railroads  are  con- 
cerned. None  of  the  provisions  of  the  "street  work  act  "  in  regard  to  a 
protest  against  the  work  shall  apply  to  any  work  contemplated  by  this  sec- 
tion. All  provisions  of  the  "  street  work  act  "  not  inconsistent  with  the 
provisions  hereof,  shall  apply  hereto.  [Statutes  '93,  p.  36.] 

Section  6  purports  to  provide  the  machinery  whereby 
the  city  authorities  may  compel  the  persons  or  companies 
own  in  o-  <>r  having  railroads  tracks  on  any  street,  to  perform 
upon  the  portions  of  such  street  which  such  persons  or 
companies  are  by  law  required  to  keep  in  order  or  repair, 
any  work  or  improvement  similar  to  that  which  may  have 


232  STREET  WORK  LAW BOND    ACT 

been  already  ordered  to  be  performed  on  such  street.  The 
other  sections  of  the  act  assume  that  other  acts,  designated 
collectively  under  the  phrase  "Street  Work  Act,"  provide  the 
machinery  enabling  the  city  authorities  to  order  the  improve- 
ment of  streets  and  to  compel  the  property  owners  affected 
to  pay  the  expenses  thereof  by  assessments;  and  then,  as 
supplementary  to  the  provisions  of  said  other  acts,  these 
other  sections  of  the  bond  act  of  February  27,  1893,  pro- 
vide the  machinery  for  the  issuance  of  said  bonds  to  pay 
such  expenses,  in  those  cases  where  the  council  elects  to  do 
so  as  provided  in  section  2  of  the  act.  The  provisions 
of  these  other  sections  seem  to  be  fully  covered  by  the  title 
of  the  act,  "An  act  to  provide  a  system  of  street  improve- 
ment bonds  to  represent  certain  assessments  for  the  cost  of 
street  work  and  improvements  within  municipalities,  and 
also  for  the  payment  of  such  bonds."  But  section  6  of 
the  act,  not  only  provides  for  the  issuance  of  bonds  to  pay 
the  cost  of  such  work  as  is  required  to  be  done  by  the 
owners  of  street  railways,  but  likewise  purports  to  provide 
the  machinery  for  compelling  the  owners  of  such  railways 
to  do  such  work  or  to  have  it  done  at  their  expense.  In 
this  respect  section  6  of  the  act  seems  to  contravene  the 
requirement  of  section  24  of  article  IV  of  the  constitution 
that  "every  act  shall  embrace  but  one  subject  which  sub- 
ject shall  be  expressed  in  its  title."  Since,  in  so  far  as 
section  six  attempts  to  provide  the  machinery  for  enabling 
the  city  authorities  to  order  to  be  done  any  work  which 
they  are  not  enabled  to  order  to  be  done  under  the  acts 
embraced  by  the  general  phrase  "Street  Work  Act,"  the  act 
embraces  a  subject  not  expressed  in  its  title,  and  as  to  this 
subject  the  act  seems  to  be  void.  "If  any  subject  shall  be 
embraced  in  an  act  which  shall  not  be  expressed  in  its  title, 
such  act  shall  be  void  only  as  to  so  much  thereof  as  shall 
not  be  expressed  in  its  title. "[Section  24  article  IV  of  Consti- 
tution.] Section  497  of  the  Civil  Code  empowers  the  city 
council,  etc.,  to  grant  a  franchise  to  a  street  railroad  upon 
"such  terms"  as  it  may  provide. 

Section  498  of  the  Civil  Code  provides  that  "the  city  or 
town  authorities  in  granting  the  right  of  way  to  street  rail- 
road corporations  *  *  *  must  require  a  strict  com- 
pliance with  the  following  conditions:  *  *  *  (%^  To 
plank,  pave  or  macadamize  the  entire  length  of  the  street 
used  by  their  track,  between  the  rails,  and  for  two  feet  on 
each  side  thereof,  and  between  the  tracks,  if  there  be  more 
than  one,  and  to  keep  the  same  constantly  in  repair,  flush 
with  the  street,  and  with  good  crossings." 

Section  511  of  the  Civil  Code  makes  the  above  provisions 


IMPROVEMENTS    BY    STREET    RAILROAD   JtbruSJ       i     °f       233 


27,       . 


applicable  in  like  manner  to  a  natural  person  when  a  street 
railroad  is  constructed,  owned  or  operated  by  any  such 
person. 

These  provisions  of  the  Civil  Code  are  the  only  pro- 
visions of  law  known  to  the  author  which  require  any  work 
to  be  done  by  any  person  or  company  having  railroad 
tracks  on  a  street.  These  Civil  Code  provisions  provide 
that  the  city  authorities,  in  granting  a  right  of  way  to  a 
street  railroad  corporation,  or  to  a  person  owning  or 
operating  a  street  railroad,  shall  impose  said  conditions  to 
do  said  street  work.  But  they  do  not  provide  any  machinery 
for  compelling  such  corporations  or  persons  to  do  sucji 
work.  There  is  no  doubt  but  that  the  city  authorities  with- 
out any  special  statutory  provision  therefor  have  an  appro- 
priate remedy  if  these  conditions  are  not  complied  with, 
€.  </.,  mandamus  to  compel  the  performance  of  the  conditions. 
[Elliott  on  Roads  and  Streets,  page  592.]  But  the  question 
is:  Is  there  any  statutory  provision  providing  the  machinery 
for  compelling  the  owners  of  street  railroads  to  pay  the 
expense  of  doing  the  work  which  such  owners  are  required 
to  do  by  said  sections  of  the  Civil  Code.  Is  there  any 
statutory  provision  compelling  the  owners  of  street  railroads 
to  pay  for  such  expenses  by  assessing  the  same  upon  the 
tracks,  roadbed,  switches  and  franchises  of  said  railroad? 
Subdivision  1  of  section  7  of  the  general  street  improvement 
act  —  the  Vrooman  act  of  March  18,  1885  —  provides  that  the 
expense  incurred  for  any  work  authorized  by  said  act,  and 
which  is  to  be  assessed  according  to  the  front-foot  principle 
of  assessment,  "shall  not  include  the  cost  of  any  work  done 
in  such  portion  of  any  street  as  is  required  by  law  to  be 
kept  in  order  or  repair  by  any  person  or  company  having 
railroad  tracks  thereon."  [See  supra  p.  64.]  But  said 
act  does  not  declare  what  street  work  is  to  be  done 
by  persons  or  companies  having  railroad  tracks,  nor 
does  it  provide  how  the  expense  of  doing  such  work 
is  to  be  met.  It  provides  no  machinery  for  assessing 
the  property  of  persons  or  companies  having  railroad 
tracks.  The  only  act,  known  to  the  author,  which 
does  attempt  to  furnish  such  machinery  is  said  bond  act-^ 
the  act  of  February  27,  1893,  section  6  thereof.  [See  in  this 
connection  McVerry  v.  Boyd,  89  Cal.  309.]  In  the  case  of 
Schmidt  v.  Market  St.,  etc.,  R.  R.  Co.,  90  Cal.  37,  Mr.  Justice 
Harrison,  page  39,  said:  "No  mode  is  provided  in  the  act 
[act  of  March  18,  1885]  for  collecting  from  a  street  railroad 
corporation,  whose  road  occupies  a  portion  of  the  street,  any 
portion  of  the  expense  of  improving  the  street."  And,  if 
section  6  of  the  bond  act  of  February  27,  1893,  in  so  far  as 


234  STREET  WORK  LAW BOND    ACT 

it  attempts  to  provide  a  mode  for  collecting  from  a  person 
or  company  having  a  street  railroad  any  portion  of  the 
expense  of  improving  the  street,  be  unconstitutional  and 
void — as  it  certainly  seems  to  be,  in  view  of  the  mandatory 
requirement  of  section  24  of  article  IV  of  the  constitution 
that  "  every  act  shall  embrace  but  one  subject " — then  it 
must  follow  that  there  is  still  no  special  mode  provided  by 
law  for  collecting  from  a  person  or  company  having  a  street 
railroad  any  portion  of  the  expense  of  improving  the  street, 
and  the  only  way  in  which  the  conditions  imposed  under 
the  provisions  of  section  498  of  the  Civil  Code  can  be 
enforced,  is  by  mandamus,  or  some  other  appropriate  rem- 
edy not  dependent  for  its  existence  upon  any  special  statutory 
provision  providing  a  special  remedy  in  such  cases. 

In  said  case  of  Schmidt  v.  Market  St.,  etc.,  R.  R.  Co.,  90 
Cal.  37,  it  was  held  that  when,  under  section  497  of  the  Civil 
Code,  the  city  council,  in  granting  to  a  street  railroad  com- 
pany the  right  of  way  or  franchise,  imposes  as  one  of  the 
conditions  that  the  company  shall  pay  the  cost  of  improving 
the  part  of  the  street  occupied  by  its  tracks,  etc.,  and  that 
such  cost  shall  be  "collected  in  the  manner  provided  for  the 
collection  of  other  street  assessments,"  the  acceptance  of  the 
franchise,  subject  to  such  condition,  is  equivalent  to  a  con- 
tract to  pay  such  cost  in  such  manner.  Held,  further,  that 
as  the  manner  provided  for  the  collection  of  other  street 
assessments  under  the  Vrooman  act  of  March  18, 1885,  is  by 
suit  brought  by  the  contractor,  that  the  defendant  was  liable 
on  said  contract  in  an  action  by  the  contractor  to  recover  the 
amount  of  the  assessment.  In  that  case  the  defendant's 
liability  was  founded  upon  its  contract  with  the  city  made 
by  its  acceptance  of  its  franchise  with  a  condition  imposed 
that  it  would  not  only  pay  the  cost  of  the  street  work  in 
question,  but  that  the  same  should  be  "  collected  in  the 
manners/provided  for  the  collection  of  other  street  assess- 
ments." Defendant's  liability  in  that  case  was  not  founded 
upon  any  provision  of  any  statute  providing  a  manner  for 
the  collection  of  assessments  from  persons  or  companies 
having  street  railroads,  but  was  founded  solely  upon  its  said 
contract,  arising  out  of  its  acceptance  of  said  franchise  sub- 
ject to  said  conditions.  [See  this  subject  considered  in  the 
notes  to  subdivision  1  of  section  7  of  the  Vrooman  act  of 
March  18,  1885,  supra,  page  67  et  seq.] 

SECTION  7.  The  term  "city  treasurer,"  as  used  in  this  act,  shall  be  held 
to  mean  and  include  any  person  who,  under  whatever  name  or  title,  is  the 
custodian  of  the  funds  of  the  municipality.  [Statutes  '93,  p.  38.] 


IMPROVEMENTS  BY  STREET  RAILROADS    fSbruarVSfiaSs!  A°*  °f    235 

SECTION  8.  The  act  entitled  "An  act  to  amend  an  act  entitled  'An  act  to 
provide  for  work  upon  streets,  lanes,  alleys,  courts,  places  and  sidewalks, 
and  for  construction  of  sewers  within  municipalities,'  approved  March 
eighteenth,  eighteen  hundred  and  eighty-five,  by  adding  thereto  an  addi- 
tional part,  numbered  four,  consisting  of  sections  thirty-eight,  thirty-nine, 
forty,  forty-one,  forty-two,  forty-tnree  and  forty-four,  relative  to  a  system 
of  street  improvement  bonds,"  approved  March  seventeenth,  eighteen  hun- 
dred and  ninety-one,  is  hereby  repealed,  except  as  to  any  and  all  proceed- 
ings hitherto  commenced  thereunder,  which  proceedings  may  be  completed 
and  have  full  force  as  is  therein  provided.  [Statutes  '93,  p.  38.] 

SECTION  9.  This  act  shall  take  effect  and  become  of  force  from  and  after 
its  passage.  [Statutes  '93,  p.  38.] 


Tree  Planting  M  of  March  11,  1893, 


An  Act  to  provide  for  the  planting,  maintenance,  and  care  of 
shade  trees  upon  streets,  lanes,  alleys,  courts  and  places  within 
municipalities,  and  of  hedges  upon  the  lines  thereof;  also,  for 
the  eradication  of  certain  weeds  within  city  limits. 

[Approved  Man  h  11, 1893,  statutes  1893,  p.  153.] 

The  people  of  the  state  of  California,  represented  in  senate  and  assembly r 
do  enact  as  follows : 

SECTION  1.  All  streets,  lanes,  alleys,  places  or  courts  in  the  municipali- 
ties of  this  state,  now  open  or  dedicated, or  which  may  hereafter  be  opened 
or  dedicated  to  public  use,  whose  grade  has  been  officially  established,  and 
which  have  been  actually  graded  in  conformity  therewith,  may  be  planted 
with  shade  trees  along  the  edges  of  the  sidewalks  thereof,  by  order  of  the 
city  council,  which  shall  have  power  also  to  provide  for  the  maintenance 
and  care  of  the  same;  and  the  city  council  shall  have  power  to  prescribe 
the  height,  thickness  and  manner  of  trimming  of  all  hedges  set  out,  or  that 
shall  be  hereafter  set  out,  along  the  line  of  any  street,  lane,  alley,  place  or 
court  dedicated  to  public  use,  whether  graded  or  not,  and  to  compel  com- 
pliance with  its  ordinances  in  the  premises  by  the  owners  or  occupants  of 
the  lots  fronting  thereon.  The  powers  hereby  conferred  upon  city  councils 
shall  be  exercised  in  the  manner  and  under  the  proceedings  hereinafter 
described. 

Section  1  of  this  act  declares  what  work  the  city  council 
is  authorized  to  order  to  be  done  under  the  act.  The  sub- 
sequent sections  provide  the  machinery  by  which  the  coun- 
cil is  to  acquire  jurisdiction  to  order  the  work  done,  and 
likewise  the  machinery  by  which  the  cost  of  the  work  is  to 
be  paid  for  by  means  of  assessments  levied  upon  the  prop- 
erty owners.  As  the  procedure  provided  for  by  the  act  is 
very  similar  to  that  provided  by  the  general  street  improve- 
ment act  of  March  18, 1885,  supra,  pages  1-210,  the  reader  is 
referred  to  the  notes  to  the  corresponding  and  analogous 
sections  of  that  act. 

SECTION  2.  The  city  council  of  any  municipality  in  the  state  may,  at  its 
discretion,  pass  a  resolution  of  intention  to  plant,  or  cause  to  be  planted, 
with  shade  trees,  any  graded  street,  lane,  alley,  place  or  court  within  the 
limits  of  such  municipality.  Such  resolution  of  intention  may  embrace  the 
entire  length  of  any  street,  lane,  alley,  place  or  court,  or  any  portion  there- 
of, but  must  specify  the  kind  of  trees  to  be  planted,  their  size,  age,  and  their 
distance  apart.  The  street  superintendent  shall  thereupon  cause  to  be 
conspicuously  posted  along  both  sides  of  the  street  mentioned  in  the  reso- 
lution, at  not  more  than  three  hundred  feet  in  distance  apart,  notices  of 
the  passage  of  said  resolution.  Said  notice  shall  be  headed,  "Notice  to 
plant  shade  trees,"  in  letters  not  less  than  one  inch  in  length,  and  shall,  in 


TREE    PLANTING    ACT  Act  of  March  11, 1893.       237 

legible  characters,  set  forth  the  language  of  the  resolution,  and  the  date  of 
its  passage.  The  city  clerk  shall  also  cause  a  copy  of  the  resolution  to  be 
published  for  six  days  in  one  or  more  daily  newspapers  published  and  cir- 
culated in  said  city,  and  designated  by  said  city  council. 

[See  notes  to  section  2  of  act  of  March  18,  188*  ,«npra,page  6.] 
SECTION  3.  The  owners  of  a  majority  of  the  frontage  of  the  property  on 
both  sides  of  the  street  proposed  to  be  planted  as  aforesaid,  may,  within 
ten  days  after  the  expiration  of  the  time  of  publication  of  said  resolution, 
file  their  written  statement  of  objections  to  the  proposed  work,  with  the 
city  clerk,  which  must  be  signed  by  the  objectors,  each  one  writing  after 
his  or  her  name  the  number  of  feet  frontage  owned  by  him  or  her.  Such 
objection  must  show  wherein  the  parties  making  them  will  be  injured  or 
aggrieved  by  the  proposed  work,  and  if  the  objection  be  to  the  kind  of  trees 
proposed  to  be  planted,  they  must  name  some  other  kind  of  tree  to  be  sub- 
stituted therefor.  The  city  council  shall,  at  its  next  meeting  after  the  filing 
of  said  objections,  fix  a  time  for  hearing  the  same,  not  less  than  one  week 
thereafter.  The  city  clerk  shall  thereupon  notify  each  objector,  or  his 
agent,  who  has  signed  his  or  her  name  to  the  statement,  by  depositing  in 
the  post  office  of  said  city  a  notice  addressed  to  him  or  her,  postage  pre- 
paid, notifying  the  objectors  of  the  time  and  place  of  hearing.  At  the  time 
specified,  the  council  snail  hear  the  objections  urged,  and  pass  upon  the 
same,  and  its  decision  shall  be  final  and  conclusive,  except  that  in  the 
choice  of  trees  to  be  planted,  it  shall  be  governed  by  the  written  request  of 
the  owners  of  a  majority  of  the  frontage  on  both  sides  of  the  street  which  it 
is  proposed  to  plant.  If  the  objections  be  sustained,  no  further  proceedings 
shall  be  taken  under  the  resolution  of  intention  for  six  months  after  the 
date  of  its  passage.  If  it  be  again  proposed  to  plant  the  street,  the  council 
shall  commence  proceedings  de  novo,  as  if  no  action  had  been  previously 
taken. 

[See  notes  to  section  3  of  act  of  March  18, 1885,  supra,  page  10.] 
SECTION  4.  At  the  expiration  of  ten  days  after  the  expiration  of  the  time 
of  publication  of  said  resolution  of  intention,  if  no  written  objections  to  the 
work  therein  described  shall  have  been  filed  with  the  city  clerk,  as  herein- 
before provided,  otherwise  immediately  upon  the  overruling  of  the  objec- 
tions by  the  council,  the  council  shall  be  deemed  to  have  acquired  jurisdic- 
tion to  order  to  be  done  the  work  which  is  authorized  by  this  act,  which 
order  shall  be  published  for  two  days  in  the  same  papers  and  manner  as 
provided  for  the  publication  of  the  resolution  of  intention. 
[See  notes  to  section  4  of  act  of  March  18,  1885,  supra,  page  37. J 
SECTION  5.  Before  passing  any  resolutions  for  the  planting  of  any  street, 
the  city  council  shall  cause  notice,  with  specifications,  to  be  posted  conspic- 
uously for  five  days  near  the  door  of  the  council  chamber,  and  shall  adver- 
tise the  same  for  five  days  in  the  same  manner  and  papers  as  heretofore 
provided  for  the  publication  of  the  resolution  of  intention,  inviting  sealed 
proposals  for  bids  for  furnishing  the  trees  and  doing  the  work  ordered.  All 
bids  shall  state  the  sum  or  price  for  which  the  bidder  will  undertake  to 
furnish  the  trees,  of  the  kind,  age  and  size  required,  and  will  suitably  pre- 
pare the  ground,  set  out  the  trees,  warrant  every  one  of  them  to  grow,  or 
replace  all  that  fail  to  grow  or  receive  damage  from  whatever  cause  with 
others  of  the  same  kind,  and  of  suitable  age  and  size  to  preserve  uniformity, 
and  will  for  three  years  care  for,  cultivate,  protect,  irrigate  and  trim  said 

*y     \ 


,   X 

(u 


•DIVERSITY 


248       STREET  WORK  LAW TREE  PLANTING  ACT 

trees.  And  no  order  for  the  planting  of  any  street  shade  trees  shall  be 
made  that  does  not  likewise  provide  for  the  care  and  maintenance  of  the 
trees  for  three  years  by  the  contractor  planting  the  trees.  All  proposals  or 
bids  shall  be  accompanied  by  a  check  payable  to  the  order  of  the  mayor,  or 
president  of  the  city  council,  certified  by  a  responsible  bank,  for  an  amount 
which  shall  not  be  less  than  ten  per  cent,  of  the  aggregate  of  the  proposal. 
Said  proposals  or  bids  shall  be  delivered  to  the  clerk  of  the  city  council, 
indorsed  "Proposals  to  plant  trees,"  and  said  council  shall,  in  open  session, 
examine  and  publicly  declare  the  same ;  provided,  that  no  proposal  or  bid 
shall  be  considered  unless  accompanied  by  said  check.  The  council  may 
reject  all  proposals,  should  it  deem  this  for  the  public  good,  and  shall  reject 
the  bid  of  any  party  who  has  been  delinquent,  or  unfaithful  in  any  former 
contract  with  the  municipality,  and  may  award  the  contract  to  the  lowest 
responsible  bidder,  at  the  prices  named  in  his  bid,  which  award  shall  be 
approved  by  the  mayor,  or  president  of  the  council.  Notice  of  such  awards 
of  contract  shall  be  posted  and  advertised  for  five  days,  in  the  manner 
hereinbefore  provided,  and  it  shall  be  the  duty  of  the  superintendent  of 
streets  to  enter  into  a  contract  with  the  bidder  to  whom  the  work  shall 
have  been  awarded  by  the  council,  and  at  the  prices  specified  in  his  bid; 
whereupon  the  certified  checks  of  all  the  other  bidders  shall  be  returned  to 
them,  respectively.  But  if  such  lowest  bidder  neglects,  fails  or  refuses,  for 
fifteen  days  after  the  first  posting  and  publication  of  the  award,  to  enter 
into  the  contract,  then  the  city  council,  without  further  proceedings,  shall 
again  advertise  for  proposals  or  bids  as  in  the  first  instance,  and  shall  award 
the  contract  for  said  work  to  the  then  lowest  bidder.  If  the  contractor  who 
shall  have  taken  any  contract  shall  not  complete  the  planting  within  the 
time  limited  in  the  contract,  or  within  such  further  time  as  the  council 
may  give  him,  the  superintendent  of  streets  shall  report  such  delinquency 
to  the  council,  which  may  relet  the  unfinished  portion  of  the  planting,  and 
the  future  care  of  the  trees,  after  pursuing  the  formalities  hereinbefore  pre- 
scribed for  the  letting  of  the  whole  in  the  first  instance. 

[See  notes  to  section  5  of  act  of  March  18,  1885,  supra,  page  44.] 
SECTION  6.  All  contractors  shall,  at  the  time  of  executing  any  contract 
for  the  planting  and  care  of  trees,  execute  a  bond  to  the  satisfaction  of  the 
mayor,  or  president  of  the  city  council,  with  two  or  more  sureties,  and 
payable  to  the  city,  in  such  sums  as  the  mayor,  or  president  of  the  council, 
shall  deem  adequate,  conditioned  for  the  faithful  performance  of  the  con- 
tract, and  the  sureties  shall  justify  before  the  recorder,  or  a  justice  of  the 
peace,  in  double  the  amount  mentioned  in  such  bond,  over  and  above  all 
statutory  exemption.  Before  being  entitled  to  any  contract,  the  bidder  to 
whom  the  award  shall  have  been  made  must  pay  into  the  city  treasury  the 
cost  of  the  publication  of  notices,  resolutions  and  orders,  and  all  other 
incidental  expenses  required  under  the  proceedings  prescribed  by  this  act. 
[See  notes  to  section  6  of  act  of  March  18,  1885,  supra,  page  62.] 
SECTION  7.  All  work  done  under  the  provisions  of  this  statute  shall  be 
executed  under  the  direction  of  the  superintendent  of  streets,  whose  duty 
it  shall  be,  under  the  general  control  of  the  council,  to  see  that  all  the  obli- 
gations assumed  by  contractors  towards  the  city  are  faithfully  complied 
with,  and  that  all  trees  furnished  are  sound,  healthy,  free  from  infection 
by  insects,  and  of  the  kind,  size  and  age  called  for  by  the  contract.  He 
shall  certify  to  the  completion  of  all  wrork,  or  portion  of  work,  which,  by 


TREE    PLANTING    ACT       Act  of  March  11, 1893.       239 

the  terms  of  the  contract,  shall  entitle  the  contractor  to  payment  in  whole 
or  in  part,  and  the  presentation  of  his  certificate  by  the  contractor  shall  be 
a  condition  precedent  to  each  payment  that  shall  become  due  under  the 
contract. 

[See  notes  to  section  7  of  act  of  March  18,  1885,  supra,  page  67.] 
SECTION  8.  All  sums  due  to  contractors  under  the  provisions  of  this  act 
shall  be  payable  by  installments,  as  follows,  to  wit  f  Not  more  than  one- 
half  the  entire  consideration  in  the  contract  shall  be  payable  on  the  com- 
pletion of  the  planting,  and  out  of  this  amount  the  superintendent  of  streets 
shall  see  that  the  trees  are  paid  for,  to  the  party  furnishing  the  same;  one 
half  the  balance  at  the  end  of  eighteen  months  after  the  completion  of  the 
planting;  prodded,  all  conditions  shall  have  been  complied  with;  the 
remaining  one-half  to  be  paid  at  the  end  of  three  years  after  the  completion 
of  the  planting;  provided,  all  conditions  shall  have  been  complied  with. 

SECTION  9.  Immediately  upon  the  execution  of  any  contract  for  the 
planting  and  care  of  street  trees  under  the  provisions  of  this  act,  it  shall  be 
the  duty  of  the  city  assessor  to  make  an  assessment  to  cover  the  sum  to 
become  due  for  the  work  specified  in  such  contract  (including  all  incidental 
expenses)  upon  the  lots  and  land  fronting  on  the  street,  lane^  alley,  court 
or  place  to  which  such  contract  relates,  each  lot  or  portion  of  a  lot  being 
separately  assessed,  in  proportion  to  the  frontage,  at  a  rate  per  foot  front 
sufficient  to  cover  the  total  expenses  of  the  work.  Said  assessment  shall 
briefly  refer  to  the  contract,  the  work  contracted  for,  and  shall  show  the 
amount  to  be  paid  therefor,  together  with  any  incidental  expenses,  the  rate 
per  front  foot  assessed,  the  amount  of  each  assessment,  the  name  of  the 
owner  of  each  lot,  if  known  to  the  assessor  (if  unknown,  the  word 
"  unknown"  shall  be  written  opposite  the  number  or  description  of  the  lot 
with  the  amount  assessed  thereon).  And  the  assessor  shall  attach  to  said 
assessment  a  diagram,  exhibiting  the  street,  lane,  alley,  place  or  court  on 
which  the  work  is  contracted  to  be  done,  and  showing  the  relative  location 
and  frontage  of  such  lot,  numbered  to  correspond  with  the  numbers  in  the 
assessment.  To  said  assessment  shall  be  attached  a  warrant,  which  shall 
be  signed  by  the  superintendent  of  streets,  and  countersigned  by  the  mayor, 
or  president  of  the  council.  The  said  assessments  and  warrants  shall  be 
separately  issued  for  each  payment  that  shall  be  due  the  contractor,  as 
specified  in  section  eight  of  this  act,  and  shall  be  substantially  in  the  follow- 
ing form : 

FORM   OF   THE   WARRANT. 

By  virtue  hereof,  I  (name  of  the  superintendent  of  streets), of  the  city  of 

— ,  county  of  -   ,  and  state  of  California,  by  virtue  of  the  authority 

vested  in  me  as  said  superintendent  of  streets,  do  authorize  and  empower 
(name  of  contractor),  his  agents  or  assigns,  to  demand  and  receive  the  sev- 
eral assessments  upon  the  assessment  and  diagram  hereto  attached,  and 
this  shall  be  his  warrant  for  the  same. 

Date  ,  .  (Name  of  superintendent  of  streets.) 

(Countersigned  by  name  of  mayor  or  president  of  council.) 

Recorded  (date  , ).        (Name  of  superintendent  of  streets.) 

Said  warrant,  assessment  and  diagram  shall  be  recorded  in  the  office  of 
the  superintendent  of  streets.  When  so  recorded  the  several  amounts 
assessed  shall  be  a  lien  upon  the  lands,  lots  or  portions  of  lots  assessed, 
respectively,  for  the  period  of  two  years  from  the  date  of  said  recordifl 


240  STREET  WORK  LAW TREE    PLANTING  ACT 

unless  sooner  discharged.  From  arid  after  the  date  of  said  record,  all  per- 
sons interested  in  any  manner  in  any  or  all  of  the  lots  assessed,  shall  be 
deemed  to  have  notice  of  the  contents  of  said  record. 

[See  notes  to  sections  7,  8  and  9,  act  of  March  18,  1885,  supra,  pp.  67 
to  107.] 

SECTION  10.  After  said  warrant,  assessment  and  diagram  shall  have  been 
recorded,the  same  shall  be  delivered  to  the  contractor, his  agents  or  assigns, 
on  demand,  who  shall  thereby  be  authorized  to  demand  and  receive  the 
the  amounts  of  the  several  assessments.  In  default  whereof,  and  as  regards 
enforced  collections,  interest,  cost  and  penalties,  and  the  correction  of 
errors,  the  same  proceedings  are  to  be  had  as  are  specified  in  sections  nine, 
ten,  eleven,  twelve,  sixteen  and  seventeen  of  an  act  entitled  "An  act  to 
provide  for  work  upon  streets,  lanes,  alleys,  courts,  places  and  sidewalks, 
and  for  the  construction  of  sewers  within  municipalities,"  approved  March 
eighteenth,  eighteen  hundred  and  eighty-five,  amended  March  fourteenth, 
eighteen  hundred  and  eighty-nine. 

[See  notes  to  sections  10,  11,  12  and  16  of  act  of  March  18, 1885,  supra, 
p.  108,  et  seq.] 

SECTION  11.  The  city  council  of  every  municipality  in  this  state  has 
jurisdiction  of  the  hedges  and  fences  placed  by  property  owners  along  street 
lines,  and  may,  by  ordinance,  prohibit  the  planting  of  thorn-bearing  hedges , 
and  the  use  of  barbed  wire  along  street  lines,  and  may  regulate  the  height, 
width,  and  the  mode  of  trimming  hedges,  and  enforce  ordinances  enacted 
for  such  purposes  against  absentees,  or  other  negligent  or  recusant  owners 
or  occupants  of  lots  or  lands  on  which  hedges  are  maintained.  They  may 
also  condemn,  as  public  nuisances,  any  or  all  weeds  whose  seeds  are  of  a 
winged  or  downy  nature,  and  are  spread  by  the  winds,  and  may  compel 
the  eradication  of  such  weeds  by  the  owners  of  the  lots  whereon  they  grow, 
or  at  their  expense. 

SECTION  12.  The  city  council  or  trustees  of  every  municipality  shall 
provide  for  the  replacement  of  missing  trees,  and  for  the  trimming  and 
care  of  all  trees  that  have  or  shall  have  been  planted  for  three  or  more 
years  in  the  streets  and  highways,  whether  such  planting  shall  have  been 
done  under  this  act  or  otherwise ;  the  expense  whereof  must  be  defrayed 
out  of  the  street  fund,  and  the  work  be  done  by  the  superintendent  of 
streets  of  such  municipality. 

SECTION  13.  This  act  shall  only  apply  to  such  municipalities  as  shall  by 
vote  of  the  electors  residing  therein  determine  to  come  within  its  provi- 
sions. 

SECTION  14.    This  act  shall  take  effect  from  and  after  its  passage. 


Street  Opening  tict  of  ^arch  6,  1889. 


An  Act  to  provide  for  laying  out,  opening,  extending,  widening, 
straightening,  or  dosing  up  in  whole  or  in  part  any  street, 
square,  lane,  alley,  court,  or  place  within  municipalities,  and 
to  condemn  and  acquire  any  and  all  land  and  property  neces- 
sary or  convenient  for  that  purpose. 

[Approved  March  6, 1889,  statutes  1889,  p.  70.] 

The  people  of  the  state  of  California,  represented  in  senate  and  assem- 
bly, do  enact  as  follows : 

SECTION  1.  Whenever  the  public  interest  or  convenience  may  require, 
the  city  council  of  any  municipality  shall  have  full  power  and  authority  to 
order  the  opening,  extending,  widening,  straightening,  or  closing  up  in 
whole  or  in  part  of  any  street,  square,  lane,  alley,  court,  or  place  within 
the  bounds  of  such  city,  and  to  condemn  and  acquire  any  and  all  land  and 
property  necessary  or  convenient  for  that  purpose.  [Statutes  1889,  p.  70.] 

The  above  act  of  March  6,  1889,  is  the  first  general  act 
upon  the  subject  of  street  opening,  passed  since  the  adop- 
tion of  the  new  constitution. 

Section  1  provides  what  work  the  city  council  is  author- 
ized to  do  under  the  act,  and  the  following  sections  provide 
the  machinery  for  doing  that  work.  Two  proceedings  are 
•contemplated  and  provided  for  in  the  act,  one  against  the 
property  to  be  condemned  for  the  use  of  the  street,  and 
the  other  to  assess  other  property  benefited  by  the  improve- 
ment. 

As  recited  in  the  title,  it  is  an  act  "  to  condemn  and 
acquire  any  and  all  land  and  property  necessary  or  con- 
venient" for  the  purposes  of  the  act,  namely  for  opening 
extending,  widening,  straightening  or  closing  up  any  street 
etc.,  and  therefore  the  act  necessarily  involves  the  exercise 
of  two  different  and  high  prerogative  or  sovereign  powers, 
namely,  that  of  "  eminent  domain"  and  that  of  "  taxation." 
By  the  power  of  "  eminent  domain"  the  property  is  taken  to 
open,  widen,  extend  or  straighten  the  street.  By  the  power 
of  "  taxation"  (which  includes  assessments  upon  the  prop- 
erty specially  benefited,  or  perhaps  upon  such  as  is  legisla- 
tively deemed  to  be  thus  benefited),  compensation  is  made 
to  those  whose  property  has  been  taken  under  the  exercise 
of  the  power  of  eminent  domain. 

After  providing  in  section  1  what  work  the  city  council 
is  authorized  to  do  under  the  act,  namely,  the  opening, 


242  STREET  WORK:  LAW — OPENING  ACT 

extending,  widening,  straightening  or  closing  up  any  street, 
etc.,  the  act  provides  the  machinery  for  accomplishing 
these  objects,  in  substance  as  follows:  The  council  passes 
its  resolution  declaring  its  intention  to  do  the  work,  and 
specifying  the  extreme  boundaries  of  the  district  to  be 
assessed  to  pay  the  damages  and  the  expense  of  doing  the 
work.  [Section  2.]  Notice  of  the  passage  of  such  resolution 
is  then  posted  and  published  by  the  superintendent  of 
streets.  [Section  3.]  Persons  interested  may  file  objec- 
tions to  said  work  or  to  the  extent  of  the  assessment  dis- 
trict. [Section  4.]  These  objections,  if  filed,  are  heard  and 
passed  upon  by  the  council,  and  if  none  are  filed,  or  if 
being  filed,  are  overruled,  the  council  is  then  deemed  to 
have  acquired  jurisdiction  to  order  any  of  the  work  to  be 
done  which  is  authorized  by  section  1.  [Section  5.]  The 
council  then  passes  an  ordinance  or  resolution  ordering 
the  work  to  be  done,  and,  unless  the  proposed  work  is  for 
closing  up,  appoints  three  commissioners  to  assess  the  ben- 
efits and  damages.  These  commissioners  have  the  power  of 
general  supervision  of  the  proposed  work  or  improvement 
until  the  completion  thereof.  [Section  6.]  The  commis- 
sioners then  proceed  to  view  the  lands  affected,  and  to 
determine  (1.)  the  value  of  the  land  actually  taken  for  the 
improvement;  (2.)  the  damage  to  improvements  taken;  (3.) 
damages  to  the  property  not  actually  taken — damages  which 
will  accrue  to  the  property  not  actually  taken,  by  reason  of 
its  severance  from  the  portion  which  is  sought  to  be  taken, 
and  damages  resulting  thereto  from  the  doing  of  the  pro- 
posed work;  (4-)  the  amount  of  expenses  incident  to  the  pro- 
posed work  or  improvement,  e.  g.  expenses  of  removing 
obstructions  where  a  street  is  to  be  opened,  and  likewise  the 
expenses  enumerated  in  sections  6  and  7.  The  commis- 
sioners then  assess  upon  the  assessment  district  described 
in  the  resolution  of  intention  the  total  amount,  namely  the 
amount  of  said  value  of  said  land  and  property  taken, 
together  with  the  amount  of  said  damages  and  the  amount 
of  said  expenses  incident  to  said  work  or  improvement. 
Such  assessment  is  made  upon  all  the  lands  in  said  district 
in  proportion  to  the  benefits  derived.  [Section  9.]  The 
commissioners  then  make  a  written  report  to  the  council, 
accompanying  the  same  with  a  plat  of  the  district,  showing 
the  land  taken  or  to  be  taken,  etc.  [Section  10.]  The  city 
clerk  then  gives  notice,  by  publication,  of  the  filing  of  said 
report.  [Section  13.]  Written  objections  to  said  report  may 
be  filed,  and  if  filed  the  council  fixes  a  day  for  hearing  the 
same.  The  clerk  notifies  the  objectors,  by  depositing  notice 
in  the  post  office.  At  the  time  set,  the  council  hears  the 


BRIEF    OUTLINE    OF    MACHINERY       Sffrch?  [JS ACt  °f    243 

objections,  and  passes  upon  the  same,  and  likewise  upon  the 
commissioners'  report,  and  may  confirm,  correct,  or  modify 
the  same,  or  order  a  new  assessment,  report,  and  plat. 
[Section  14.]  The  city  clerk  then  forwards  to  the  street 
superintendent  a  certified  copy  of  the  report,  assessment 
and  plat,  and  such  copy  becomes  the  assessment  roll.  [Sec- 
tion 15.]  Thereupon  the  superintendent  of  streets  publishes 
notice  that  he  has  received  said  assessment  roll,  and  that 
all  sums  levied  and  assessed  therein  are  due  and  payable 
in  i  mediately,  and  that  payment  of  said  sums  is  to  be  made 
to  him  within  thirty  days  from  the  date  of  the  first  publi- 
cation. If  not  paid  within  said  time,  the  superintendent 
of  streets  proceeds  to  advertise  and  collect  the  sums  delin- 
quent, by  the  sale  of  the  property  assessed,  in  the  same  man- 
ner as  is  provided  for  the  collection  of  state  and  county 
tuxes.  [Section  16.]  The  money  collected  from  payment 
of  the  assessments  is  paid  into  a  fund  devoted  to  the  pro- 
posed work,  and  all  payments  for  land  and  improvements 
taken  or  damaged,  as  well  as  for  the  expenses  incident  to 
doing  the  work,  are  paid  by  the  city  treasurer  upon  war- 
rants  drawn  upon  said  fund  from  time  to  time.  [Sections 
<Sand  I'.).]  When  sufficient  money  is  in  the  fund,  the  commis- 
sioners notify  the  owner,  possessor,  or  occupant  of  any  land  or 
Improvements  to  whom  damages  have  been  awarded,  that  a 
warrant  has  been  drawn  for  the  payment  of  the  same,  and 
that  he  can  receive  such  warrant  at  the  office  of  the  com- 
missioners upon  tendering  a  conveyance  of  any  property  to 
be  taken.  [Section  17.]  If  any  owner  of  land  or  property 
to  be  taken,  neglects  or  refuses  to  accept  the  warrant  drawn 
in  his  favor,  or  objects  to  the  report  as  to  the  necessity  of 
taking  his  land,  the  commissioners,  with  the  approval  of 
the  council,  may  cause  proceedings  to  be  taken  for  the  con- 
demnation of  such  land  or  property,  as  provided  by  law, 
under  the  right  of  eminent  domain.  [Section  18.]  Sup- 
plementary assessments  may  be  ordered  to  make  up  a  defi- 
ciency, and  if  there  be  a  surplus  the  same  may  be  divided 
pro  rata  to  the  parties  paying  the  same.  [Section  20.] 
Proceedings  may  be  taken  by  the  council  to  settle  defective 
titles.  [Section  21.]  The  council  may  declare  the  bound- 
aries of  the  assessment  district  to  include  the  whole  city. 
[Section  22.] 

The  foregoing  constitutes  a  brief  outline  of  the  machinery 
provided  by  the  act  for  accomplishing  its  purpose;  i.  e.,  for 
doing  the  work  authorized  to  be  done  by  section  1  of  the 
act. 

The  act  is  authority  for  the  opening,  extending,  widening, 
straightening  and  closing  of  streets,  and  authorizes  the 


244  STREET   WORK    LAW — OPENING    ACT 

damages,  which  must  be  paid  to  those  whose  property  is  to 
be  taken  or  damaged  for  any  of  such  purposes,  as  well  as 
the  expenses  incident  to  such  work  or  improvement,  to  be 
assessed  upon  the  property  in  the  assessment  district,  in 
proportion  to  the  benefits  to  be  derived.  But  the  act  does 
not  give  the  power  to  assess  for  any  work  other  than  that 
described  in  section  1.  It  does  not  include  the  power  to 
assess  any  property  in  the  assessment  district  for  the 
improvement  of  the  street  by  grading,  culverting,  and  the 
like.  These  things  must  be  done  under  the  street  improve- 
ment act — the  Vrooman  act  of  March  18,  1885.  Thus,  if 
the  council,  proceeding  under  the  street  opening  act  of 
March  6,  1889,  resolve  to  open  a  street,  it  can  not  in  the 
same  proceeding  provide  for  any  improvement  on  the  street, 
such  as  grading,  etc.  The  term  "opening"  does  not  include 
the  improving  of  a  street  by  grading,  paving,  etc.  It  refers 
to  throwing  open  to  the  public  what  before  was  appropriated 
to  individual  use,  and  the  removing  of  such  obstructions  as 
exist  on  the  surface  of  the  earth,  rather  than  any  artificial 
improvement  of  the  surface.  When  proceedings  are  had 
under  the  said  act  of  March  6,  1889,  to  open  a  street,  the 
assessment  which  the  act  authorizes  to  be  levied  upon  all 
the  property  in  the  assessment  district  declared  to  be  bene- 
fited by  the  proposed  improvement,  is  an  assessment  con- 
fined to  raising  a  fund  necessary  to  pay  what  the  right  of 
way  might  cost,  which  includes  the  cost  of  the  land  and 
property  taken  or  damaged,  the  cost  of  removing  such 
obstructions  as  exist  on  the  surface  of  the  earth,  and  all 
costs  and  expenses  incident  to  the  work  or  improvement, 
such  as  the  commissioners'  compensation,  office  rent,  etc. 
[Reed  v.  City  of  Toledo,  18  Ohio,  161.] 

In  Reed  v.  City  of  Toledo,  supra,  a  bill  in  chancery 
was  filed  to  enjoin  the  collection  of  a  tax  by  the 
city  of  Toledo  upon  real  estate  of  the  complain- 
ant. The  city  council  had  commenced  proceedings 
under  section  17  of  the  city  charter  to  extend  a  street. 
Section  16  of  the  charter  corresponded  to  our  general  street 
improvement  act — the  Vrooman  act  of  March  18,  1885 — 
and  provided  that  the  city  might  grade,  gravel,  level,  pave, 
repair,  plank,  flag,  or  macadamize  a  street,  and  assess  the 
costs  and  expenses  thereof  upon  the  lots  fronting  thereon. 
Section  17  of  the  city's  charter  corresponded  to  our  general 
street  opening  act — the  act  of  March  6, 1889 — and  provided 
that  the  city  council  shall  have  power  to  lay  out  and  pro- 
long and  open  streets,  lanes,  etc.,  and  assess  the  damages 
due  property  owners  whose  property  is  taken  therefor,  to 
the  real  estate  situated  within  an  assessment  district  whose 


OPENING,    ETC.,  NOT    IMPROVING      SftiJj  ft*4*  *       245 


boundaries  were  defined  by  the  charter  to  be  60  rods  on  each 
side  of  such  improvements.  The  city  council,  under  said 
section  17  of  the  city's  charter,  passed  an  ordinance  to 
extend  Adams  street,  one  of  the  streets  of  the  town,  from  its 
then  termination,  so  as  to  intersect  what  was  known  by  the 
name  of  the  terminal  road;  and  at  the  same  time  the  ordin- 
ance also  provided  that  the  street  should  be  graded,  and  that 
the  total  expense  —  for  grading  as  well  as  for  extending  the 
street  —  should  be  assessed  upon  the  property  lying  within 
the  district  benefited.  The  court  said:  "  Now  it  will  be 
seen  that  all  that  this  section  [section  17]  provides  for,  that 
would  require  any  outlay  of  money,  is  the  opening  of  the 
street  and  paying  for  the  right  of  way.  By  the  term  open- 
ing, we  do  not  understand  the  improvement  of  a  street  or 
highway  by  grading,  culverting,  etc.;  the  term  is  generally 
(we  think  always)  clearly  distinguishable  from  such  kind  of 
improvement.  The  term  opening  refers  to  the  throwing 
open  to  the  public  what  before  was  appropriated  to  individ- 
ual use,  and  the  removing  of  such  obstructions  as  exist  on 
the  surface  of  the  earth,  rather  than  any  artificial  improve- 
ment of  the  surface.  *  *  *  The  assessment  provided 
for  in  the  17th  section  on  all  the  lots  within  60  rods  bene- 
fited by  an  improvement,  we  suppose  relates  merely  to  rais- 
ing a  fund  to  pay  for  what  the  right  of  way  might  cost." 
See  also  City  and  County  of  San  Francisco  v.  Kiernan,  33 
Pac.  Rep.  721  where  it  is  said,  per  Vanclief,  C.,  "  No  work 
or  improvement,  in  the  sense  of  the  act  of  1883,  [the  Vroo- 
niMii  act  of  March  6,  1883,  statutes  1883,  page  32,  entitled, 
'An  act  to  provide  for  the  improvement  of  streets,  lanes, 
alleys/  etc.]  could  be  done  or  made  on  the  addition  to  the 
street  made  by  the  widening,  until  after  the  widening.  All 
the  work  and  improvements  authorized  by  the  act  of  1883 
[the  Vrooman  act  of  1883]  are  to  be  done  upon  existing 
streets.  Work  and  improvements  upon  existing  streets  con- 
stitute the  whole  subject  matter  of  the  act,  and  therefore  the 
prohibition  in  the  first  section  ["no  public  work  or  improve- 
ment of  any  description  shall  be  done  or  made  within  any 
municipality  organized  and  existing  for  municipal  purposes, 
or  hereafter  organized,  in,  upon  or  about  the  streets  thereof, 
the  cost  and  expense  of  which  is  made  chargeable,  or  may  be 
assessed  upon,  private  property  by  special  assessment, 
except  as  in  this  act  provided"]  cannot  extend  to  the  subject 
of  creating  or  partially  creating  streets.  In  this  connection 
it  should  be  observed  that  heretofore  it  seems  to  have  been 
the  policy  of  the  legislature  to  provide  for  improvements 
upon  existing  streets  by  acts  entirely  distinct  from  acts  pro- 
viding for  opening,  extending  and  widening  streets." 


246  STREET  WORK  LAW OPENING    ACT 

This  street  opening  act  of  March  6,  1889,  not  only  pro- 
vides for  opening,  widening,  entending  and  straightening 
streets  but  also  for  "closing"  streets.  In  Polack  v.  S.  F. 
Orphan  Asylum,  48  Cal.  490,  it  was  held  that  the  legislature 
has  power  to  close  or  vacate  a  street  in  a  city;  and  it  may 
delegate  such  power  to  the  municipal  authorities  of  a  city, 
and  after  such  power  has  been  delegated  to  the  municipal 
authorities,  the  legislature  may  revoke  it  in  part,  as  well  as 
in  whole,  or  without  any  express  revocation,  may  itself 
exercise  it;  that  the  municipal  authorities  cannot  close  or 
vacate  a  street  without  the  consent  of  the  legislature.  It 
was  also  held  that  the  legislature  may  vacate  a  portion  of 
a  street,  even  if  a  person  owns  property  fronting  on  another 
portion  of  the  street  which  will  incidentally  be  injured 
thereby.  Under  section  14  of  article  I  of  the  present  con- 
stitution it  is  altogether  probable  that  if,  by  reason  of  the 
closing  of  any  street,  a  property  owner  should  suffer  special 
consequential  damages  over  and  above  the  common  injury 
to  the  other  abutters  on  the  street,  or  the  general  public, 
the  municipal  corporation  would  be  liable  therefor;  [Reardon 
v.  San  Francisco,  66  Cal.  492]  but  owners  of  lands  abutting 
upon  neighboring  streets,  or  upon-  other  parts  of  the  same 
street,  are  not  entitled  to  damages,  even  though  the  value 
of  their  lands  should  be  -lessened  by  the  closing  or  partial 
closing  of  the  street.  [See  Elliott  on  Roads  and  Streets,  pp. 
662-3.  See  also  Brook  v.  Horton,  68  Cal.  554,  as  to  power 
of  the  legislature  to  vacate  a  street.] 

Constitutionality  of  the  Street  Opening  Act.  The  question 
of  the  constitutionality  of  this  street  opening  act, — the  act  of 
March  6, 1889, — came  before  the  Supreme  Court  in  the  case 
of  Davies  v.  City  of  Los  Angeles,  86  Cal.  37,  where  it  was 
held  that  the  act  was  constitutional.  It  was  held  in  the 
prevailing  opinion,  by  Mr.  Justice  Works, — Justices  Thorn- 
ton, McFarland  and  Paterson  concurring, — that  the  act  is  a 
general  law  within  the  meaning  of  section  6  of  article  XI 
of  the  constitution;  that  it  supersedes  all  city  charters 
existing  prior  to  the  adoption  of  the  new  constitution,  and 
likewise  such  as  have  been  framed  since  under  section  8  of 
article  XI  of  the  constitution.  The  action  was  brought 
by  a  property  owner, — upon  who  property  an  assessment 
had  been  made  for  the  payment  of  the  expenses  of 
opening  and  widening  a  certain  street, — against  the  city 
of  Los  Angeles  and  the  street  superintendent,  as  defend- 
ants, to  enjoin  the  enforcement  of  said  assessment. 
The  defendants  demurred  to  the  complaint  and  the  trial 
court  overruled  the  demurrer.  The  city  appealed.  Plaint- 
iff, respondent  on  appeal,  contended  that  the  statute  was 


CONSTITUTIONALITY    OF   ACT         M arJii°(f  i889ACt  °f      247 

unconstitutional.  While  the  prevailing  opinion  of  the 
Supreme  Court  held  the  act  to  be  constitutional,  it  neverthe- 
less decided  that  the  trial  court  did  not  err  in  overruling 
the  demurrer,  since  the  complaint  did,  in  fact  state  a  cause 
of  action,  notwithstanding  the  constitutionality  of  the  act, 
since  it  sufficiently  appeared  from  the  complaint  that  all 
the  property  within  the  assessment  district  was  not  assessed. 
It  was  held  that  this  allegation  showed  the  assessment  to  be 
void,  under  the  decisions  in  People  v.  Lynch,  51  Cal.  15; 
Moulton  v.  Parks,  64  Cal.  181;  Dyer  v.  Harrison,  63  Cal. 
447;  and  Diggins  v.  Brown,  76  Cal.  318,  and  that  therefore 
the  complaint  in  an  action  to  enjoin  the  enforcement  of  the 
assessment,  was  sufficient, — even  if  the  statute  were  in  all 
respects  constitutional.  Justices  Fox  and  Beatty  concurred 
in  the  judgment,  but  dissented  from  all  that  was  said  in  the 
main  opinion  in  support  of  the  proposition  that  the  act  is 
in  force  in  cities  which,  like  Los  Angeles,  have  adopted 
freeholders  charters  since  the  adoption  of  the  new  con- 
stitution. 

It  was  contended  by  counsel  in  this  case:  (1.)  That, 
even  if  the  act  be  constitutional,  it  is  not  applicable  to  the 
city  of  Los  Angeles,  since  that  city  has  a  charter  containing 
ample  provisions  for  the  opening  and  widening  of  streets. 
(2.)  That  the  statute  is  unconstitutional  for  the  following 
reasons:  (a.)  That,  while  it  gives  authority  'to  assess 
property  within  assessment  districts,  the  subject  of  such 
assessment  is  not  included  in  the  title  of  the  act.  (b.)  That 
it  provides  for  taking  property  without  due  process  of  law, 
because  the  notice  provided  for  may  be  given  generally  by 
posting,  and  no  personal  notice  to  each  of  the  parties  inter- 
ested is  required  or  authorized,  (c.)  That  it  "authorizes 
an  assessment  for  benefits  and  a  sale,  and  conveyance  on 
delinquency,  while  the  improvement  supposed  to  confer  the 
benefits  is  hypothetical,  and  may  be  incapable  of  materiali- 
zation." (d.)  That  the  "provisions  of  the  act  admit  of  an 
assessment  for  benefits  largely  in  excess  of  the  amount 
needed."  (e .)  That  the  statute  is  in  violation  of  section  13 
of  article  XI  of  the  constitution  because  it  delegates  to  a 
special  commission  the  power  to  perform  municipal 
functions.  (8.)  That  so  much  of  the  statute  as  provides 
for  the  assessment  of  the  value  of  the  property  to  be  taken 
or  condemned  in  opening  or  widening  the  street,  is 
invalid  for  various  reasons. 

The  prevailing  opinion  of  the  court  decided  against  all  of 
these  contentions  of  counsel.  As  to  the  last  contention, 
namely,  that  so  much  of  the  statute  as  provides  for  the 
assessment  of  the  value  of  the  property  to  be  taken  or  con- 


248  STREET  WORK  LAW OPENING  ACT 

demned,  is  invalid,  the  prevailing  opinion  says:  "For  the 
purposes  of  this  case,  this  point  may  be  conceded.  *  *  * 
This  does  not  concern  the  party  where  property  has  been 
assessed.  It  is  a  question  affecting  the  rights  of  the  city 
and  the  party  whose  property  is  sought  to  be  taken." 
[NOTE:  It  may  be  well  to  state  here  that  the  word  "assess- 
ment/' as  used  in  connection  with  these  street  opening  and 
closing  acts,  is  often  used  in  two  different  connections,  and 
with  two  different  meanings.  (1.)  It  is  used  in  connection 
with  property  which  is  to  be  assessed  to  pay  the  expenses 
of  the  work — these  expenses  including  the  damages  to  be 
paid  to  those  property  owners  whose  property  is  taken  or 
damaged.  In  this  connection  it  means  the  rating  or  fixing 
of  the  proportion  of  the  total  expenses  which  the  property 
owners  have  to  pay,  whose  property  lies  within  the  assess- 
ment district  declared  to  be  benefited  by  the  proposed 
improvement.  It  means,  in  this  connection,  a  charge 
against  the  property  lying  within  the  assessment  district, 
and  liable  to  be  assessed  to  pay  the  cost  of  the  work.  (2.) 
The  word  "assessment"  is  likewise  often  used  in  connection 
with  the  proceedings  to  take  or  condemn  the  land  necessary 
to  be  taken  or  condemned  for  the  purpose  of  opening  the 
street,  etc.  In  this  connection  it  means- the  fixing  by  the 
commissioners  of  the  value  of  the  land  thus  sought  to  be 
taken  or  condemned.  In  the  one  connection  it  is  a  charge 
against  the  land  burdened  with  the  expenses  of  the  work. 
In  the  other  it  is  a  valuation  of  the  land  which  is  to  be 
taken  or  condemned  for  the  street  opening  purposes. 
In  the  first  connection  the  word  "assessment"  is  used  in 
that  sense  which  it  has  as  a  part  of  the  sovereign  power  of 
taxation;  in  the  second  connection  it  is  used  in  the  sense 
that  attaches  to  the  word  "appraisment."  In  the  first  sense, 
i.  e.t  as  a  part  of  the  sovereign  power  of  taxation,  it  is 
applicable  to  all  the  property  in  the  assessment  district; 
in  the  other  sense,  i.  e.,  appraisement,  it  is  applicable  only 
to  the  property  taken  or  damaged  to  open  or  widen  the 
street,  and  as  thus  used,  it  is  used  in  connection  with  the 
exercise  of  the  power  of  "eminent  domain."] 

Mr.  Justice  Fox,  in  the  said  case  of  Davies  v.  City  of  Los 
Angeles,  dissented  only  from  so  much  of  the  main  opinion 
as  supported  the  proposition  that  the  act  applied  to 
municipalities  acting  under  freeholders  charters. 

Mr.  Chief  Justice  Beatty  concurred,  in  the  main,  in  the 
dissenting  opinion  of  Justice  Fox,  and  thought,  moreover, 
that  the  statute  was  unconstitutional  on  two  grounds:  (1.) 
That  it  does  not  provide  for  any  proper  notice  to  the  owners 
of  the  property  affected;  and  (2.)  that  it  permits  assess- 


CONSTITUTIONALITY    OF    ACT  March°t?  im**       249 

ments  upon  the  property  supposed  to  be  benefited  in  excess 
of  the  benefits. 

The  act  again  came  before  the  Supreme  Court  in  the 
case  of  Dehail  v.  Morford.  95  Gal.  457.  The  action  was 
brought  by  plaintiff,  a  property  owner  whose  property  had 
been  assessed,  to  restrain  the  defendant,  the  superintendent 
of  streets  of  the  city  of  Los  Angeles,  from  making  a  sale  of 
plaintiff's  property  to  satisfy  the  assessment  against  it.  The 
proceedings  to  widen  the  street  were  had  under  this  act  of 
March  6,  1889,  by  the  city  of  Los  Angeles,  a  city  having 
a  freeholders  charter  adopted  pursuant  to  the  provis- 
ions of  section  8  of  article  XI  of  the  constitution. 
It  was  held  that  the  plaintiff  was  entitled  to  a  judgment 
perpetually  restraining  the  defendant  from  making  such 
sale,  because  the  resolution  of  intention  did  not  specify  the 
exterior  boundaries  o^the  districts  to  be  assessed  to  pay  the 
cost  of  the  improvement,  as  it  was  required  to  do  by  sec- 
tion 2  of  the  act.  But,  the  constitutionality  of  the  act 
itself,  and  its  applicability  to  cities  which,  like  Los  Angeles, 
have  freeholders  charters,  containing  ample  provisions  for 
the  opening  of  streets,  seems  to  have  been  assumed.  The 
act  again  came  before  the  Supreme  Court  in  the  very  recent 
case  of  city  and  county  of  San  Francisco  v.  Kiernan,  33 
Pac.  Rep.  721.  In  that  case,  proceedings  had  been  begun 
under  the  act  of  April  25th,  1863,  [statutes  1863,  p.  560]  "an 
act  to  confer  further  powers  upon  the  board  of  supervisors  of 
the  city  and  county  of  San  Francisco/'  and  in  effect,  an 
amendment  to  the  consolidation  act.  Subsequently  and  pur- 
suant to  the  provisions  of  section  24  of  the  street  opening 
act  now  being  considered, — the  street  opening  act  of  March 
6,  1889,  [see  infra,  section  24]  the  proceedings  were  con- 
tinued under  said  last  named  act.  The  constitutionality  of 
the  provisions  of  section  18  of  the  act,  providing  for  the 
form  of  complaints,  in  an  action  to  condemn,  was  expressly 
upheld,  and  the  constitutionality  of  the  act,  in  its  general 
features,  was  at  least  assumed. 

The  statute  again  came  before  the  Supreme  Court 
in  the  still  more  recent  case  of  City  of  Santa  Ana  v. 
Harlin,  No.  19,030,  decided  September  13,  1893,  an 
action  by  the  city  under  this  street  opening  act  of 
March  6,  1889,  to  condemn  a  right  of  way  over  the 
property  of  the  defendant  for  the  opening  of  Second  street 
in  said  city.  The  court  assumed  the  act  to  be  constitutional. 

It  would  seem  therefore,  that  all  the  propositions  laid  down 
by  the  four  judges  who  concurred  in  the  prevailing  opinion 
in  Davies  v.  City  of  Los  Angeles,  86  Cal.  37,  may  be  assumed 
to  be  settled,  and  that  the  act  of  March  6,  1889,  is  the  act 


250  STREET  WORK  LAW STREET    OPENING    ACT 

under  which  streets  are  to  be  opened,  closed,  etc.,  in  all  the 
cities  of  this  state,  unless  it  has  heen  repealed  or  super- 
seded by  any  other  act. 

In  1893,  the  legislature  passed  an  act  approved  March 
23,  1893,  [statutes  1893  p.  220]  entitled  "An  act  to  provide 
for  laying  out,  opening,  extending,  widening,  straighten- 
ing, diverging,  curving,  contracting,  or  closing  up,  in  whole 
or  in  part,  any  street,  square,  lane,  alley,  court,  or  place 
within  municipalities,  or  cities  and  cities  and  counties  of 
forty  thousand  inhabitants  or  over,  and  to  condemn  and 
acquire  any  and  all  land  and  property  necessary  or  con- 
venient for  that  purpose." 

By  section  23  of  this  act  of  March  23,  1893,  it  is  provided 
that  "the  act  approved  March  6,  18S9,  entitled  'An  act  for 
opening,  widening  and  extending  streets,'  etc.,  after  the 
passage  of  this  act,  shall  not  apply  to  any  city  or  city  and 
county  having  a  population  of  forty  thousand  inhabitants 
or  over,  but  as  to  any  city  or  city  and  county  having  a 
population  of  forty  thousand  inhabitants  or  over  said  act 
shall  not  apply;  but  said  cities  and  cities  and  counties 
shall  be  subject  only  to  the  provisions  of  this  act  in  all 
matters  embraced  within  the  purview  of  this  act." 

Whether  this  act  of  March  23,  1893,  is  constitutional  or 
not,  and  whether  it  operates  to  confine  the  provisions  of  the 
act  of  March  6,  1889,  to  municipalities  of  less  than  forty 
thousand  inhabitants,  are  questions  that  are  considered  in 
the  notes  to  section  1  of  the  said  act  of  March  23,  1893, 
infra. 

Decisions  under  Street  Opening  Acts  passed  prior  to  the 
adoption  of  (he  new  Constitution  and  prior  to  the  passage  of  a 
General  Street  Opening  Act.  A  town  that  has  no  corporate 
existence,  e.  g.,  because  its  act  of  incorporation  is  unconsti- 
tutional, cannot  exercise  the  power  of  eminent  domain  to 
open  a  street.  [Colton  v.  Rossi,  9  Gal.  595.] 

A  street  cannot  be  extended,  so  as  to  take  in  private 
property,  without  condemnation.  [People  v.  Kruger,  19 
Cal.  4li.] 

The  legislature  may  determine  how  the  expense  of  open- 
ing a  street  shall  be  borne.  Whether  the  cost  of  such 
enterprises  shall  be  borne  by  contiguous  property  to  be 
benefited  thereby,  or  by  all  the  property  of  the  city,  or  by  a 
certain  proportion  of  such,  is  a  matter  for  legislative  dis- 
cretion. [Sin ton  v.  Ashbury,  41  Cal.  525.] 

The  power  to  lay  out  or  change  streets  is  in  its  nature 
legislative  and  not  judicial.  The  legislature  may  itself  per- 
form these  acts,  or  it  may  select  such  agencies  for  that  pur- 


DECISIONS    UNDER    EARLIER    ACTS       MarcU*  Jss^ ACt  °f    251 

pose  as  it  deems  proper.  Usually  the  requisite  powers  are 
conferred  upon  the  authorities  of  the  municipal  govern- 
ment; but  these  powers,  or  some  of  them,  may  be  devolved 
upon  a  court.  In  the  latter  case  the  proceedings  are 
"special  proceedings,"  and  the  court  possesses  jurisdiction 
only  by  virtue  of  the  authority  of  the  legislature,  and  does 
not  derive  it  from  any  other  source.  Therefore  if  several 
tenants  in  common  agree  to  run  a  street  through  the 
middle  of  a  block  owned  by  them,  and,  in  pursuance  of 
such  agreement,  execute  a  covenant  by  which,  through 
mistake,  the  street  is  located  at  a  place  not  in  the  middle 
of  the  block,  and  subsequently  the  municipal  authorities 
locate  and  establish  the  street,  not  in  the  middle  of  the 
block,  but  in  the  position  described  in  the  covenant,  the 
courts,  in  an  action  by  parties  to  the  covenant,  or  their 
assigns,  cannot  adjudge  that  the  street  be  located  in  the 
middle  of  the  block,  because,  if  the  action  be  regarded  as 
an  action  to  change  the  location  of  the  street  as  fixed  by 
the  municipal  authorities,  the  reply  is  that,  in  the  absence 
of  a  statute  specially  delegating  to  the  court  powers  to  lay 
out  or  change  streets,  it  has  no  such  jurisdiction,  and,  if 
the  action  be  regarded  as  having  for  its  purpose  an  adjudi- 
cation that  the  space  through  the  middle  of  the  block  was 
dedicated  as  a  street  by  the  parties  to  the  covenant,  the 
judgment  cannot  be  sustained  because  the  covenant  as 
executed  does  not  locate  the  street  in  that  position,  and 
until  the  covenant  is  reformed,  so  as  to  express  the  alleged 
intent  of  the  parties,  there  is  no  basis  for  such  adjudica- 
tion. [De  Witt  v.  Duncan,  46  Cal.  343.] 

Commissioners  appointed  to  assess  damages  and  benefits, 
in  a  proceeding  to  condemn  land  for  a  street,  have  no 
jurisdiction  to  determine  questions  of  title.  [Wilcox  v.  City 
of  Oakland,  49  Cal.  29. 

The  act  of  March  28,  1878,  "  to  provide  for  the  opening 
of  streets  in  the  city  of  Oakland,"  required  the  petition  of 
five  or  more  residents  and  freeholders  to  the  city  council 
to  contain,  inter  alia  ua  statement  that  in  the  opinion  of  the 
petitioners  the  public  interests  require  that  the  improve- 
ment asked  for  [describing  it  generally]  should  be  made." 
In  the  Matter  of  Grove  Street,  61  Cal.  438,  it  appeared  that 
the  petition  of  the  residents  and  freeholders  to  the  council 
contained  a  statement  that  "  in  the  opinion  of  the  petition- 
ers the  improvement  asked  for  should  be  made."  Held: 
That  the  statement  contained  in  the  petition  is  not  the 
same  in  substance  as  that  required  by  the  statute,  and  for 
this  reason  the  petition  of  the  freeholders  did  not  give 
power  or  jurisdiction  to  the  council.  It  was  urged  by 


252  STREET    WORK    LAW STREET    OPENING    ACT 

respondent  in  that  case  that  (he  council  had  itself  conclusively 
determined  that  it  had  jurisdiction,  when  it  passed  the  res- 
olution of  intention,  it  being  claimed  that  in  doing  so, 
the  council  adjudicated  the  existence  of  facts  upon  which 
its  jurisdiction  depended.  On  this  point  the  court,  per 
McKinstry,  J.,  pages  453-4,  said:  "  An  inferior  board  may 
determine  conclusively  its  own  jurisdiction  or  power  by 
adjudicating  the  existence  of  facts,  upon  the  existence  of 
which  its  jurisdiction  or  power  depends.  Where,  however, 
the  power  depends,  not  upon  the  existence  or  non-existence 
of  matters  in  pais,  to  be  established  by  evidence,  but  upon 
allegations  in  a  petition,  a  portion  of  the  record,  the  ques- 
tion is  not  the  same." 

Where  the  council  is  empowered  to  open  or  improve  a 
street  upon  the  petition  of  the  owners  of  a  majority  of  the 
frontage  upon  the  proposed  improvement,  the  council  can- 
not include  more  than  one  street  in  one  proceeding.  [Boor- 
man  v.  Santa  Barbara,  65  Cal.  313. J 

The  interest  which  a  street  railroad  company  has  in  a 
street  upon  which  it  is  authorized  to  lay  down  tracks,  is  an 
easement  in  the  land,  and  is  real  property.  The  interest  or 
estate  of  the  company  in  the  street  is  capable  of  being 
enhanced  in  value  by  the  widening  of  the  street,  and  by  such 
widening  a  substantial  benefit  may  accrue  to  the  compan^, 
and  the  company  may  be  assessed  for  its  share  of  the 
expenses  in  widening  the  street.  [Appeal  of  N.  B.  &  M. 
R.  R.  Co.,  32  Cal.  500.] 

Where  commissioners  are  appointed  to  assess  benefits, 
etc.,  upon  the  lands  affected  by  the  improvement,  the  stat- 
utes sometimes  provide  that  the  courts  shall  receive  the 
reports  of  the  commissioners  and  exercise  supervisory  pow- 
ers thereover,  although  in  such  matlers  it  is  not  usual  to 
permit  an  appeal  to  the  courts  while  the  proceedings  are  in 
fieri,  and  the  right  to  supervise  the  acts  and  reports  of  the 
commissioners  usually  falls  to  the  city  councils  or  other 
municipal  legislative  bodies.  Where,  however,  the  statute 
thus  grants  these  supervisory  powers  to  the  courts,  the 
courts  on  appeal  will  not  set  aside  the  commissioners' 
report  unless  it  is  based  upon  an  erroneous  principle  of 
law,  or  unless  it  is  demonstrable  that  the  commissioners 
have  erred  in  respect  to  the  facts,  in  fixing  the  values 
which  they  have  arrived  at.  These  reports,  in  respect  to 
values,  are  in  the  nature  of  a  verdict  of  a  jury  upon  a  ques- 
tion of  fact,  which  is  never  set  aside  as  against  evidence 
unless  it  appears  affirmatively  and  clearly  to  have  been 
unwarranted  by  the  proofs.  [Appeal  of  Piper,  32  Cal.  530; 
Appeal  of  Brooks  et  al.,  32  Cal.  560.] 


DECISIONS    UNDER    EARLIER    ACTS       B£ch°8,  SS^  °*       253 

The  benefits  accrue  to  the  lards  and  not  to  the  buildings. 
[Appeal  of  Piper,  supra.] 

The  assessment  is  properly  chargeable  to  the  owner  of 
the  fee,  and  not  in  part  to  the  lessee,  if  it  does  not  appear 
that  the  lessee  will  be  benefited.  [Appeal  of  Reese  32 
Cal.  568.] 

For  a  very  able  review  of  some  of  the  most  important 
questions  of  constitutional  law  in  connection  with  these 
street  opening  statutes,  see  the  opinion  of  Mr.  Justice 
Temple  in  Lent  v.  Tillson,  72  Cal.  404,  reviewing 
the  act  of  March  23,  1876,  providing  for  the  widening 
of  Dupont  street  in  the  city  and  county  of  Sari  Francisco, 
and  the  proceedings  had  thereunder. 

It  is  not  within  the  scope  or  plan  of  this  book  to  discuss 
general  principles.  Its  sole  aim  is  to  give  the  gen- 
eral street  laws  of  California,  as  the  same  exist  to-day, 
with  amendments  up  to  date,  and  to  cite,  in  the  notes  to 
the  sections  of  said  acts,  such  decisions  of  our  own  Supreme 
Court  as  will  serve  to  illustrate  the  working  of  these  stat- 
utes, and  the  points  of  law  liable  to  arise  in  the  course  of 
proceedings  thereunder.  The  decisions  of  our  own  courts 
upon  the  street  improvement  acts, — i.  e.,  acts  for  the 
improvement  of  streets  already  in  existence,  by  grading, 
macadamizing,  paving,  or  otherwise  improving  such 
streets — have  been  so  numerous  that  they  alone  suffice  to 
shed  ample  light  upon  these  street  improvement  acts.  But 
this  is  not  so  in  respect  to  acts  for  opening,  closing,  or 
widening  streets.  As  to  these  opening  and  closing  acts,  the 
decisions  of  our  own  courts  are  meager,  and,  alone,  do  not 
afford  much  help  in  construing  these  street  opening  and 
closing  acts.  But,  it  is  not  the  intention  of  this  book  to 
cite  the  decisions  of  the  courts  of  other  states — save  in  a 
few  particular  instances, — and  the  reader  is,  therefore, 
referred  to  chapter  XVI  of  Dillon's  Municipal  Corporations 
— chapter  on  eminent  domain, — where  the  subject  matter 
of  street  opening  acts  is  considered. 

In  many  respects,  the  proceedings  necessary  to  a  valid 
assessment  upon  the  property  liable  to  be  charged  with  the 
expenses  of  opening,  extending,  straightening,  or  closing 
streets,  under  this  act, — act  of  March  6,  1889, — are  analo- 
gous or  similar  to  the  corresponding  proceedings  under  the 
Vrooman  act  of  March  18,  1885,  for  the  improvement  of 
streets,  and  therefore  the  decisions,  cited  in  the  notes  to 
that  act,  [supra  pp.  1-216]  are  not  cited  in  the  notes  to 
this  act,  but  the  reader  is  referred  to  the  notes  to  those 
sections  of  said  act  of  March  18,  1885,  which  contain  pro- 
visions analogous  to  the  corresponding  sections  of  this 


254      STREET  WORK  LAW STREET  OPENING  ACT 

street  opening  act,  whenever  the  proceedings  are  similar  or 
analogous. 

SECTION  2.  Before  ordering  any  work  to  be  done  or  improvement  made 
which  is  authorized  by  section  one  of  this  act,  the  city  council  shall  pass  a 
resolution  declaring  its  intention  to  do  so,  describing  the  .work  or  improve- 
ment, and  the  land  deemed  necessary  to  be  taken  therefor,  and  specifying 
the  exterior  boundaries  of  the  district  of  lands  to  be  affected  or  benefited 
by  said  work  or  improvement,  and  to  be  assessed  to  pay  the  damages,  cost 
and  expenses  thereof.  [Statutes  '89,  p.  70,] 

Section  two  requires  the  resolution  of  intention  to  specify 
"the  exterior  boundaries"  of  the  district  to  be  assessed  to 
pay  the  cost  of  the  improvement,  and  if  the  resolution  does 
not  specify  the  exterior  boundaries,  the  council  will  not 
acquire  jurisdiction  over  the  matter,  and  the  proceedings 
will  be  void.  The  following  is  not  a  description  or  specifi- 
cation of  the  exterior  boundaries  of  any  district,  viz:  "All 
lots  and  parcels  of  land  fronting  on  the  east  side  of  First 
street,  from  the  west  side  of  Los  Angeles  street  to  the  west 
line  of  Alameda  street."  In  this  case,  the  only  boundaries 
of  the  district  which  are  "  specified  "  are  the  lines  of  First 
street  between  Los  Angeles  and  Alameda  streets,  and  these, 
instead  of  being  the  "exterior  boundaries"  of  the  district  to 
be  assessed  are  only  the  boundaries  of  a  tract  within  the 
district  which  is  exempted  from  assessment.  There  is  noth- 
ing in  the  description  of  the  district  from  which  its  extent 
in  either  direction  from  First  street  can  be  ascertained,  or 
by  which  any  one  can  determine  the  quantity  of  land  which 
is  to  be  assessed.  [Dehail  v.  Morford,  95  Cal.  457.] 

[See  notes  to  section  3  of  the  act  of  March  18, 1885,  supra, 
page  8  et  seq.~\ 

SECTION  3.  The  street  superintendent  shall  then  cause  to  be  conspicu- 
ously posted  along  the  line  of  said  contemplated  work  or  improvement,  at 
not  more  than  three  hundred  feet  in  distance  apart,  but  not  less  than  three 
in  all,  notices  of  the  passage  of  said  resolution.  Said  notice  shall  be  headed, 
"Notice  of  public  work,"  in  letters  not  less  than  one  inch  in  length,  shall 
be  in  legible  characters,  state  the  fact  of  passage  of  the  resolution,  its  date, 
and,  briefly,  the  work  or  improvement  proposed,  and  refer  to  the  resolution 
for  further  particulars.  He  shall  also  cause  a  notice,  similar  in  substance, 
to  be  published  for  a  period  of  ten  days  in  one  or  more  daily  newspapers 
published  and  circulated  in  said  city,  and  designated  by  said  city  council ; 
or,  if  there  is  no  daily  newspaper  so  published  and  circulated  in  said  city, 
then  by  four  successive  insertions  in  a  weekly  or  semi-weekly  newspaper  so 
published,  circulated  and  designated.  [Statutes  '89,  p.  70.] 

[See  notes  to  section  3  of  act  of  March  18,  ]885,  supra,  page  8,  et  seq.] 

SECTION  4.  Any  person  interested  objecting  to  said  work  or  improvement, 
or  to  the  extent  of  the  district  of  lands  to  be  affected  or  benefited  by  said 
work  or  improvement,  and  to  be  assessed  to  pay  the  cost  and  expenses 


asiTY 


NOTICE  -  OBJECTIONS  ~TSl<Lu  Act°f      255 


thereof,  may  make  written  objections*  to  the  same  within  ten  days  after  the 
expiration  of  the  time  of  the  publication  of  said  notice,  which  objection 
shall  be  delivered  to  the  clerk  of  the  city  council,  who  shall  indorse  thereon 
the  date  of  its  reception  by  him,  and  at  the  next  meeting  of  the  city  coun- 
cil after  the  expiration  of  said  ten  days,  lay  said  objections  before  said  city 
council,  which  shall  fix  a  time  for  hearing  said  objections  not  less  than  one 
week  thereafter.  The  city  clerk  shall  thereupon  notify  the  persons  making 
such  objections,  by  depositing  a  notice  thereof  in  the  post  office  of  said  city, 
postage  prepaid,  addressed  to  such  objector.  [Statutes  '89,  p.  70.] 

If,  by  reason  of  some  jurisdictional  defect  in  the  proceed- 
ings, e.  g.,  failure  of  the  notice  of  intention  to  specify  the 
exterior  boundaries  of  the  assessment  district  —  the  council 
fails  to  acquire  jurisdiction,  the  property  owner  does  not 
waive  his  right  to  object  in  court  to  this  want  of  jurisdiction 
or  to  defeat  an  action  upon  the  assessment, 
merely  because  he  appeared  before  the  city  council  and 
filed  objections,  as  provided  for  in  section  4.  If  the  council 
failed  to  acquire  jurisdiction  of  the  subject  matter  of  the 
improvement,  it  could  not  acquire  jurisdiction  by  the  con- 
sent of  the  property  owner,  much  less  by  the  fact  that  he 
objected  to  the  improvement.  [Dehail  v.  Morford,  95  Cal. 
457.] 

[See  notes  to  sections  3  and  11  of  act  of  March  18,  1885, 
,  pages  8-37;  64-84.] 


SECTION  5.  At  the  time  specified  or  to  which  the  hearing  may  be 
adjourned,  the  said  city  council  shall  hear  the  objections  urged  and  pass 
upon  the  same,  and  its  decision  shall  be  final  and  conclusive.  If  such 
objections  are  sustained,  all  proceedings  shall  be  stopped,  but  proceedings 
may  be  again  commenced  at  any  time  by  giving  notice  of  intention  to  do 
said  work  or  make  said  improvement.  If  such  objection  is  overruled  by 
the  city  council,  the  proceedings  shall  continue  the  same  as  if  such  objec- 
tion had  not  been  made.  At  the  expiration  of  the  time  prescribed  during 
which  objections  to  said  work  or  improvement  may  be  made,  if  no  objec- 
tions shall  have  been  made,  or  if  an  objection  shall  have  been,  and  said 
council,  after  hearing,  shall  have  overruled  the  same,  the  city  council  shall 
be  deemed  to  have  acquired  jurisdiction  to  order  any  of  the  work  to  be 
done,  or  improvements  to  be  made,  which  is  authorized  by  section  one  of 
this  act.  [Statutes  '89,  p.  71.] 

[See  notes  to  section  3  of  act  of  March  18,  1885,  supra,  page  8  et  seq.] 

SECTION  6.  Having  acquired  jurisdiction,  as  provided  in  the  preceding 
section,  the  city  council  shall  order  said  work  to  be  done,  and  unless  the 
proposed  work  is  for  closing  up,  and  it  appears  that  no  assessment  is  neces- 
sary, shall  appoint  three  commissioners  to  assess  benefits  and  damages  and 
have  general  supervision  of  the  proposed  work  or  improvement  until  the 
completion  thereof  in  compliance  with  this  statute.  For  their  services 
they  shall  receive  auch  compensation  as  the  city  council  may  determine 
from  time  to  time;  provided,  that  such  compensation  shall  not  exceed  two 
hundred  dollars  per  month  each,  nor  continue  more  than  six  month^ 


256  STREET  WORK  LAW STREET    OPENING  ACT 

unless  extended  by  order  of  the  city  council.  Such  compensation  shall  be 
added  to  and  be  chargeable  as  a  part  of  the  expenses  of  the  work  or 
improvement.  Each  of  said  commissioners  shall  file  with  the  clerk  of  the 
city  council  an  affidavit,  and  a  bond  to  the  state  of  California  in  the  sum  of 
five  thousand  dollars,  to  faithfully  perform  the  duties  of  his  office.  The 
city  council  may  at  any  time  remove  any  or  all  of  said  commissioners  for 
cause,  upon  reasonable  notice  and  hearing,  and  may  fill  any  vacancies 
occurring  among  them  for  any  cause.  [Statutes  '89,  page  71.] 

[See  notes  to  section  3  of  act  of  March  18,  1885,  supra,  page  8  et  seq.] 

SECTION  7.  Said  commissioners  shall  have  power  to  employ  such  assist. 
ance,  legal  or  otherwise,  as  they  may  deem  necessary  and  proper;  also,  to 
rent  an  office  and  provide  such  maps,  diagrams,  plans,  books,  stationery, 
fuel,  lights,  postage,  expressage,  and  incur  such  incidental  expenses  as 
they  may  deem  necessary.  [Statutes  '89,  p.  71.] 

SECTION  8.  All  such  charges  and  expenses  shall  be  deemed  as  expenses 
of  said  work  or  improvement,  and  be  a  charge  only  upon  the  funds  devoted 
to  the  particular  work  or  improvement  as  provided  hereinafter.  All  pay- 
ments, as  well  for  the  land  and  improvements  taken  or  damaged,  as  for 
the  charges  and  expenses,  shall  be  paid  by  the  city  treasurer,  upon  war- 
rants drawn  upon  said  fund  fronrtime  to  time,  signed  by  said  commission- 
ers, or  a  majority  of  them.  All  such  warrants  shall  state  whether  they  are 
issued  for  land  or  improvements  taken  or  damaged,  or  for  charges  and 
expenses,  and  that  the  demand  is  payable  only  out  of  the  money  in  said 
fund,  and  in  no  event  shall  the  city  be  liable  for  the  failure  to  collect  any 
assessment  made  by  virtue  hereof,  nor  shall  said  warrant  be  payable  out  of 
any  other  fund,  nor  a  claim  against  the  city.  [Statutes  '89,  p.  71.] 

SECTION  9.  Said  commissioners  shall  proceed  to  view  the  lands  described 
in  the  resolution  of  intention,  and  may  examine  witnesses  on  oath,  to  be 
administered  by  any  one  of  them.  Having  viewed  the  land  to  be  taken, 
and  the  improvements  affected,  and  considered  the  testimony  presented, 
they  shall  proceed  with  all  diligence  to  determine  the  value  of  the  land 
and  the  damage  to  improvements  and  property  affected,  and  also  the 
amount  of  the  expenses  incident  to  said  work  or  improvement,  and  having 
determined  the  same,  shall  proceed  to  assess  the  same  upon  the  district  of 
lands  declared  benefited,  the  exterior  boundaries  of  which  were  fixed  by 
the  resolution  of  intention  provided  for  by  section  2  hereof.  Such  assess- 
ment shall  be  made  upon  the  lands  within  said  district  in  proportion  to  the 
benefit  to  be  derived  from  said  work  or  improvement,  so  far  as  the  said 
commissioners  can  reasonably  estimate  the  same,  including  in  such  esti- 
mate the  property  of  any  railroad  company  within  said  district,  if  such 
there  be.  [Statutes  '89,  p.  72.} 

[See  notes  to  sections  3,  8  and  11  of  the  Vrooman  act  of  March  18.  1885> 
supra,  pp.  34,  95  and  138.  The  street  opening  act  of  March  6,  1889,  does 
not  contain  any  provision  for  "appeal"  similar  to  that  contained  in  section 
11  of  the  Vrooman  act  of  March  18, 1885.J 

If  all  property  in  the  assessment  district  liable  to  assess- 
ment be  not  assessed,  the  assessment  will  be  void,  and  there 
can  be  no  recovery  thereon.  [Davies  v.  City  of  Los  Angeles, 
86  Gal.  37,  49;  People  v.  Lynch,  51  Gal.  20;  Moulton  v. 


PROCEEDINGS    OF    COMMISSIONERS       Mwh     fessf  9  °f  ACt  °f       257 


Parks  64  Cal,  181;  Dyer  v.  Harrison,  63  Gal.  447;  Diggins 
v.  Brown,  76  Cal.  318.]  But  property  belonging  to  the 
United  States,  this  state,  or  a  municipal  corporation,  may 
be  omitted  from  assessment.  [Doyle  v.  Austin,  47  Cal.  353."] 

The  commissioners,  under  section  9,  assess  upon  the 
lands  lying  within  the  assessment  district,  liable  to  assess- 
ment, —  each  lot  being  assessed  in  proportion  to  the  bene- 
fits received  by  it  —  the  total  cost  of  the  work  or  improve- 
ment. This  total  cost  is  made  up  of  the  value  of  the  land 
and  property  taken,  and  the  damages  which  accrue  to  the 
land  and  property  not  taken,  plus  the  cost  and  expense  inci- 
dent to  the  work  or  improvement,  which  latter  item 
includes  the  costs  and  expenses  enumerated  in  sections  6 
and  7  of  the  act,  and,  in  the  case  of  opening,  widening  or 
straightening  a  street,  the  cost  of  removing  such  obstruc- 
tions as  exist  on  the  surface  of  the  earth. 

It  is  altogether  probable  that  the  net  contemplates  that 
the  rules  or  principles  by  which  the  commissioners  are  to 
be  guided  in  ascertaining  the  amount  of  damages  which 
are  to  be  paid  or  awarded  to  any  property  owner,  whose 
property  is  to  be  taken  or  damaged  for  the  opening  of  a 
street,  or  other  improvement  mentioned  in  section  1  of  the 
act,  are  the  rules  or  principles  by  which  a  jury  is  to  be 
guided,  under  the  provisions  of  section  1248  of  the  Code  of 
Civil  Procedure,  relative  to  the  exercise  of  the  power  of 
eminent  domain.  So  that,  where  a  street  is  to  be  opened, 
for  example,  the  commissioners  acting  under  section  9  of 
the  act,  should  probably  proceed  about  as  follows:  I.  If  the 
improvement  takes  all  of  the  land  and  property  of  the 
owner,  the  commissioners  determine  the  full  and  fair  mar- 
ket value  of  the  land  and  property  at  the  time  it  is  appro- 
priated, but  no  more.  [Section  624  Dillon's  Municipal 
Corporations,  3rd  ed.;  Subdiv.  1  of  section  1248  C.  C.P.;  Vol. 
6,  Am.  and  Eng.  Enc.  of  Law,  pp.  567-70.]  II.  If,  however, 
as  most  commonly  happens,  part  only  of  the  property  is  to 
be  taken,  the  commissioners  should  probably  proceed  as  fol- 
lows: (1.)  Determine  the  full  and  fair  market  value  of  the 
land  and  property  actually  taken,  at  the  time  when  it  is 
appropriated.  (2.)  Determine  the  damages  which  will 
accrue  to  the  portion  not  sought  to  be  taken,  by  reason  of 
its  severance  from  the  portion  sought  to  be  taken  as  well 
as  by  reason  of  the  doing  of  the  proposed  improvement  in 
the  manner  proposed  by  the  city  authorities.  (3.)  Deter- 
mine how  much  the  'portion  not  sought  to  be  taken, 
will  be  benefited,  if  at  all,  by  the  doing  of  the 
proposed  improvement.  (4.)  Deduct  from  the  dam- 
ages which  will  accrue  to  the  portion  not  sought  to 


258  STREET  WORK  LAW STREET   OPENING    ACT 

be  taken,  the  said  benefits  thereto,  if  the  benefits  be  less 
than  the  damages,  and  add  the  remainder  to  the  value  of 
the  land  and  property  which  is  actually  taken,  and  the  sum 
is  the  amount  of  damages  to  be  awarded  to  the  property 
owner.  (5.)  If  the  benefits  which  will  accrue  to  the  por- 
tion not  sought  to  be  taken,  by  reason  of  the  proposed 
improvement,  equal  or  exceed  the  damages  which  will  accrue 
thereto,  the  owner  will  be  entitled  to  the  full  and  fair  mar- 
ket value  of  the  land  and  property  actually  taken,  and  no 
more.  [Section  1248,  C.  C.  P.;  Sections  624-625  Dillon's 
Municipal  Corporations,  3rd  ed.;  Vol.  6  Am.  and  Eng.  Enc. 
of  Law,  pp.  571-584.]  III.  To  the  total  amount  of  dam- 
ages to  be  awarded  to  all  the  property  owners  whose  prop- 
erty is  sought  to  be  taken, — ascertained  according  to  the 
foiegoing  principles — the  commissioners  add  the  total 
amount  of  expenses  incident  to  the  work  or  improvement. 
These  last  mentioned  incidental  expenses  include  the  cost 
of  removing  all  obstructions  upon  the  surface  of  the  earth, 
— obstructions  which  must  be  removed  before  the  street  can 
be  thrown  open  to  public  use  to  the  width  proposed, — also 
such  incidental  expenses  as  are  mentioned  in  sections  6  and 
7  of  the  act.  IV.  The  commissioners  then  determine  the 
amount  of  benefit  which  will  accrue  to  each  parcel  of  land 
in  the  assessment  district,  liable  to  be  assessed  to  pay  the 
expenses  of  the  proposed  work.  V.  The  commissioners 
then  assess  upon  all  the  lands  within  the  assessment  dis- 
trict, liable  to  be  assessed,  the  total  cost  of  the  proposed 
work.  Said  total  cost  including  (1.)  the  total  amount  to  be 
awarded  to  property  owners  as  damages  to  property  taken 
or  damaged,  and  (2.)  the  total  amount  of  incidental  expenses, 
incident  to  the  doing  of  the  work,  as  aforesaid.  The  said 
total  cost  of  the  proposed  work  is  assessed  upon  the  lands  in 
the  district  in  proportion  to  the  benefits  to  be  derived  from 
said  work  or  improvement,  each  lot  or  parcel  of  land  being 
assessed  with  such  a  proportion  of  the  total  cost  of  the 
work,  as  the  amount  of  benefit  derived  by  it  from  the  pro- 
posed work  bears  to  the  total  amount  of  benefits  which  will 
accrue  to  all  the  lands  in  the  assessment  district,  subject  to 
assessment. 

The  commissioners  having  thus  determined  the  amount 
of  damages  to  be  awarded  to  each  property  owner  whose, 
property  is  to  be  taken  or  damaged  for  the  proposed  work 
and  having  thus  determined  the  amount  to  be 
assessed  against  each  lot  or  parcel  of  land  to  pay  the  total 
amount  of  damages  to  be  awarded  to  the  property  owners,  as 
well  as  the  expenses  incident  to  the  work,  make  out  a  writ- 


DAMAGES— BENEFITS 

ten   report  thereof  and  a  plat  of  the  assessment  district,  as 
provided  for  by  sections  10  and  11  of  the  act. 

Under  section  14  of  article  I  of  the  constitution,  the  ben- 
efits that  will  accrue  to  the  portion  of  the  land  not  sought 
to  be  taken  may  be  deducted  from  the  damages  which  will 
accrue  to  said  portion,  when  the  corporation  for  whose  use 
the  property  is  taken  or  damaged,  is  a  "municipal  corpora- 
tion." [Pacific  Coast  R'y  Co.  v.  Porter,  74  Cal.  261;  Butte 
County  v.  Boydston,  64  Cal.  110;  Tehama  County  v.  Bryan 
68  Cal.  57.] 

An  assessment  upon  lands  fronting  on  a  street,  to  raise 
the  amount  to  be  paid  the  owner  for  land  taken  from  him 
for  a  street,  is  not  in  violation  of  the  provision  of  the  con- 
stitution which  declares  that  the  compensation  to  be  paid 
to  a  party  for  his  land,  taken  for  public  use,  shall  be  "with- 
out deduction  for  benefits."  "Assessment"  for  benefits  in  the 
exercise  of  the  sovereign  power  of  taxation,  is  not  the  same 
as  "deduction  for  benefits"  in  the  exercise  of  the  sovereign 
power  of  eminent  domain.  [Cleveland  v.  Wick,  18  Ohio 
St.  303. 

For  a  discussion  of  some  of  the  principles  of  assessment 
by  street  commissioners,  in  a  proceeding  to  open  or  widen 
a  street,  see  Appeal  of  Piper,  32  Cal.  530;  Appeal  of  Brooks, 
32  Cal.  559;  Appeal  of  Keese,  32  Cal.  568.] 

SECTION  10.  Said  commissioners  having  made  their  assessment  of  bene- 
fits and  damage,  shall,  with  all  diligence,  make  a  written  report  thereof  to 
the  city  council,  and  shall  accompany  their  report  with  a  plat  of  the  assess- 
ment district  showing  the  land  taken  or  to  be  taken  for  the  work  or 
improvement,  and  the  lands  assessed,  showing  the  relative  location  of  each 
district,  block,  lot,  or  portion  of  lot,  and  its  dimensions,  so  far  as  the  com- 
missioners can  reasonably  ascertain  the  same.  Each  block  and  lot,  or  poi- 
tion  of  lot,  taken  or  assessed,  shall  be  designated  and  described  in  said 
plat  by  an  appropriate  number,  and  a  reference  to  it  by  such  descriptive 
number  shall  be  a  sufficient  description  of  it  in  any  suit  entered  to  con- 
demn, and  in  all  respects.  When  the  report  and  plat  are  approved  by  the 
city  council,  a  copy  of  said  plat,  appropriately  designated,  shall  be  filed  by 
the  clerk  thereof  in  the  office  of  the  recorder  of  the  county.  [Statutes  1889 , 
page  12.} 

[See  notes  under  section  8  of  act  of  March  18,  1885,  supra,  page  85  et  seq.] 
SECTION  11.  Said  report  shall  specify  each  lot,  subdivision,  or  piece  of 
property  taken  or  injured  by  the  widening  or  other  improvement,  cr 
assessed  therefor,  together  with  the  name  of  the  owner  or  claimants 
thereof,  or  of  persons  interested  therein  as  lessees,  incumbrancers,  or 
otherwise,  so  far  as  the  same  are  known  to  such  commissioners,  and  the 
particulars  of  their  interest,  so  far  as  the  same  can  be  ascertained,  and  the 
amount  of  value  or  damage,  or  the  amount  assessed,  as  the  case  may  be. 
[Statutes  1889,  page  72.} 

[See  notes  under  section  8  of  act  of  March  18, 1885,  supra,  page  85,  et  seq.] 


260  STREET   WORK    LAW STREET    OPENING    ACT 

SECTION  12.  If  in  any  case  the  commissioners  find  that  conflicting  claims 
of  title  exist,  or  shall  be  in  ignorance  or  doubt  as  to  the  ownership  of  any 
lot  of  land,  or  of  any  improvements  thereon,  or  of  any  interest  therein,  it 
shall  be  set  down  as  belonging  to  unknown  owners.  Error  in  the  designa- 
tion of  the  owner  or  owners  of  any  land  or  improvements,  or  of  the  partic- 
ulars of  their  interest,  shall  not  affect  the  validity  of  the  assessment  or  of 
the  condemnation  of  the  property  to  be  taken.  [Statutes  1889,  page  73.} 

[See  notes  under  section  8  of  act  of  March  18, 1885,  supra,  page  85,  et  seq.\ 

SECTION  13.  Said  report  and  plat  shall  be  filed  in  the  clerk's  office  of  the 
city  council,  and  thereupon  the  clerk  of  said  city  council  shall  give  notice 
of  such  filing  by  publication  for  at  least  ten  days  in  one  or  more  daily 
newspapers  published  and  circulated  in  said  city ;  or  if  there  be  no  daily 
pa  per,  by  three  successive  insertions  in  a  weekly  or  semi-weekly  newspa- 
per so  published  and  circulated.  Said  notice  shall  also  require  all  persons 
interested  to  show  cause,  if  any,  why  such  report  should  not  be  confirmed, 
before  the  city  council,  on  or  before  a  day  fixed  by  the  clerk  thereof,  and 
stated  in  said  notice,  which  day  shall  not  be  less  than  thirty  days  from  the 
first  publication  thereof.  [Statutes  1889,  page  73. J 

SECTION  14.  All  objections  shall  be  in  writing  and  filed  with  the  clerk 
of  the  city  council,  who  shall,  at  the  next  meeting  after  the  day  fixed  in 
the  notice  to  show  cause,  lay  the  said  objections,  if  any,  before  the  city 
council,  which  shall  fix  a  time  for  hearing  the  same,  of  which  the  clerk 
shall  notify  the  objectors  in  the  same  manner  as  objectors  to  the  original 
resolution  of  intention  at  the  time  set,  or  at  such  other  time  as  the  hear- 
ing may  be  adjourned  tor  the  city  council  shall  hear  such  objections  and 
pass  upon  the  same;  and  at  such  time,  or  if  there  be  no  objections  at  the 
first  meeting  after  the  day  set  in  such  order  to  show  cause,  or  such  other 
time  as  may  be  fixed,  shall  proceed  to  pass  upon  such  report,  and  may 
confirm,  correct,  or  modify  the  same,  or  may  order  the  commissioners  to 
make  a  new  assessment,  report,  and  plat,  which  shall  be  filed,  notice  given, 
and  hearing  had  as  in  the  case  of  an  original  report.  [Statutes  1889,  page  73.} 

SECTION  15.  The  clerk  of  said  city  council  shall  forward  to  the  street 
superintendent  of  the  city  a  certified  copy  of  the  report,  assessment  and 
plat,  as  finally  confirmed  and  adopted  by  the  city  council.  Such  certified 
copy  shall  thereupon  be  the  assessment  roll.  Immediately  upon 
receipt  thereof  by  the  street  superintendent  the  assessment  therein  con- 
tained shall  become  due  and  payable,  and  shall  be  alien  upon  all  the  prop- 
erty contained  or  described  therein.  [Statute*  1889,  page  73.} 

SECTION  16.  The  superintendent  of  streets  shall  thereupon  give  notice 
by  publication  for  ten  days  in  one  or  more  daily  newspapers  published  and 
circulated  in  such  city,  or  city  and  county,  or  by  two  successive  insertions 
in  a  weekly  or  semi- weekly  newspaper  so  published  and  circulated,  that 
he  has  received  said  assessment  roll,  and  that  all  sums  levied  and  assessed 
in  said  assessment  roll  are  due  aud  payable  immediately,  and  that  the 
payment  of  said  sums  is  to  be  made  to  him  within  thirty  days  from  the 
date  of  the  first  publication  of  said  notice.  Said  notice  shall  also  contain 
a  statement  that  all  assessments  not  paid  before  the  expiration  of  said 
thirty  days  will  be  declared  to  be  delinquent,  and  that  thereafter  the  sum 
of  five  per  cent,  upon  the  amount  of  each  delinquent  assessment,  together 
with  the  cost  of  advertising  each  delinquent  assessment,  will  be  added 
thereto.  When  payment  of  any  assessment  is  made  to  said  superintendent 


MANNER    OF    COLLECTING    ASSESSMENTS    KrehVl889°f  the  Act°f    261 

of  streets  he  shall  write  the  word  "paid,"  and  the  date  of  payment,  oppo- 
site the  respective  assessment  so  paid,  and  the  names  of  persons  by  or  for 
whom   said   assessment  is   paid,   and   shall,   if  so  required,  give  a  receipt 
therefor.     On   the   expiration   of  said   thirty   days   all   assessments  then 
unpaid  shall  be  and  become  delinquent,  and  said  superintendent  of  streets 
shall  certify  such  fact  at  the  foot  of  said  assessment  roll,  and  shall  add  five, 
per  cent,  to  the  amount  of  each  assessment  so  delinquent.   The  said  super- 
intendent of  streets  shall,  within   five  days  from   the  date  of  said  delin- 
quency, proceed  to  advertise  and  collect  the  various  sums  delinquent,  and 
the  whole  thereof,  including  the  cost  of  advertising,   which   last  shall  not 
exceed  the  sum  of  fifty  cents  for  each  lot,  piece,  or  parcel  of  land  separately 
assessed,  by  the  sale  of  the  assessed  property  in  the  same  manner  as  is  or 
may  be  provided  for  the  collection  of  state  and   county  taxes;  and  after 
the  date  of  said  delinquency,  and  before  the  time  of  such  sale  herein  pro- 
vided for,  no  assessment  shall  be  received  unless  at  the  same  time  the  five 
per  cent,  added  thereto,  as  aforesaid,  together  with  the  costs  of  advertising 
then   already  incurred,   shall  be  paid  therewith.     Said  list  of  delinquent 
assessments  shall  be  published  daily  for   five  days  in  one  or  more  daily 
newspapers  published  and  circulated  in  such  city,  or  by  at  least  one  inser- 
tion in  a  weekly  newspaper  so  published  and  circulated,   before  the  day  of 
sale  of  such  delinquent  assessment.     Said  time  of  sale  must  not  be  less 
than   seven  days   from  the  date  of  the  first  publication  of  said  delinquent 
assessment  list,  and  the  place  must  be  in  or  in  front  of  the  office  of  said 
superintendent  of  streets.     All  property  sold  shall  be  subject  to  redemp- 
tion in  the  same  time  and  manner  as  in  sales  for  delinquent  state  and 
county  taxes ;  and   the  superintendent  of  streets  may  collect  for  each  cer- 
tificate fifty  cents,  and  for  each  deed  one  dollar.     All  provisions  of  the 
law,   in   reference  to  the  sale  and  redemption  of  property  for  delinquent 
state  and  county  taxes  in  force  at  any  given  time,  shall  also  then,  so  far  as 
the  same  are  not  in  conflict  with  the  provisions  of  this  act,  be  applicable 
to  the  sale  and  redemption  of  property  for  delinquent  assessments  here- 
under,  including  the  issuance  of  certificates  and  execution  of  deeds.    The 
deed  of  the  street  superintendent  made  after  such  sale,  in  case  of  failure  to 
redeem,  shall  be  prima  facie  evidence  of  the  regularity  of  all  proceedings 
hereunder,  and  of  title  in  the  grantee.    It  shall  be  conclusive  evidence  of 
the  necessity   of  taking  or  damaging  the  lands  taken  or  damaged,  and  of 
the  correctness  of  the  compensation  awarded  therefor.    The  superintend- 
ent of  streets  shall,   from  time  to  time,  pay  over  to  the  city  treasurer  all 
moneys  collected  by  him  on  account  of  any  such  assessments.    The  city 
treasurer  shall,  upon    receipt  thereof,  place  the  same  in  a  separate  fund, 
designating  such  funds  by  the  name  of  the  street,   square,  lane,  alley, 
court,  or  place  for  the  widening,  opening,  or  other  improvement  of  which 
the  assessment  was  made.    Payments  shall  be  made  from  said  fund  to  the 
parties  entitled  thereto  upon  warrants  signed  by  the  commissioners,  or  a 
majority  of  them.     [Statutes  1889,  page  73.] 

Where  a  street  improvement  act  provides  that  the  assess- 
ment shall  be  collected  in  the  manner  prescribed  by  law 
for  the  collection  of  general  state  and  county  taxes,  such 
provision  prescribes  the  manner  of  collecting,  and  not  what 
shall  be  collected,  and  therefore  does  not  authorize  the 


262     STREET  WORK  LAW STREET  OPENING  ACT 

addition  of  a  per  centage  for  delinquency,  except  such  as 
the  street  improvement  act,  itself,  may  in  terms  provide 
for.  [Bucknall  v.  Story,  36  Cal.  67.] 

SECTION  17.  When  sufficient  money  is  in  the  hands  of  the  city  treasurer, 
in  the  fund  devoted  to  the  proposed  work  or  improvement,  to  pay  for  the 
land  and  improvements  taken  or  damaged,  and  when  in  the  discretion  of 
the  commissioners,  or  a  majority  of  them,  the  time  shall  have  come  to 
make  payments,  it  shall  he  the  duty  of  the  commissioners  to  notify  the 
owner,  possessor,  or  occupant  of  any  land  or  improvements  thereon  to 
whom  damages  shall  have  been  awarded,  that  a  warrant  has  been  drawn 
for  the  payment  of  the  same,  and  that  he  can  receive  such  warrant  at  the 
office  of  such  commissioners  upon  tendering  a  conveyance  of  any  property 
to  be  taken;  such  notification,  except  in  the  case  of  unknown  owners,  to 
be  made  by  depositing  a  notice,  postage  paid,  in  the  post  office,  addressed 
to  his  last  known  place  of  abode  or  residence.  If  at  the  expiration  of 
thirty  days  after  the  deposit  of  such  notice,  he  should  not  have  applied  for 
such  warrant,  and  tendered  a  conveyance  of  the  land  to  be  taken,  the 
warrant  so  drawn  shall  be  deposited  with  the  county  treasurer,  and  shall 
be  delivered  to  such  owner,  possessor,  or  occupant,  upon  tendering  a  con- 
veyance as  aforesaid,  unless  judgment  of  condemnation  shall  be  had,  when 
the  same  shall  be  canceled.  [Statutes  1889,  page  75.] 

SECTION  18.  If  any  owner  of  land  to  be  taken  neglects  or  refuses  to  accept 
the  warrant  drawn  in  his  favor  as  aforesaid,  or  objects  to  the  report  as  to 
the  necessity  of  taking  his  land,  the  commissioners,  with  the  approval  of 
the  city  council,  may  cause  proceedings  to  be  taken  for  the  condemnation 
thereof,  as  provided  by  law  under  the  right  of  eminent  domain.  The  com- 
plaint may  aver  that  it  is  necessary  for  the  city  to  take  or  damage  and 
condemn  the  said  lands,  or  an  easement  therein,  as  the  case  may  be,  with- 
out setting  forth  the  proceedings  herein  provided  for,  and  the  resolution  and 
ordinance  ordering  said  work  to  be  done  shall  be  conclusive  evidence  of 
such  necessity.  Such  proceeding  shall  be  brought  in  the  name  of  the 
municipality,  and  have  precedence  so  far  as  the  business  of  the  court  will 
permit;  and  any  judgment  for  damages  therein  rendered  shall  be  payable 
out  of  such  portion  of  the  special  fund  as  may  remain  in  the  treasury,  so 
far  as  the  same  can  be  applied.  At  any  time  after  trial  and  judgment 
entered,  or  preceding  an  appeal,  the  court  may  order  the  city  treasurer  to 
set  apart  in  the  city  treasury  a  sufficient  sum  from  the  fund  appropriated 
to  the  particular  improvement  to  answer  the  judgment  and  all  damages, 
and  thereupon  may  authorize  and  order  the  municipality  to  enter  upon  the 
land  and  proceed  with  the  proposed  work  and  improvement.  In  case  of  a 
deficiency  in  said  fund  to  pay  the  whole  of  such  judgment  and  damages, 
the  city  council  may,  in  their  discretion,  order  the  balance  thereof  to  be 
paid  out  of  the  general  fund  of  the  treasury  or  to  be  distributed  by  the 
commissioners  over  the  property  assessed  by  a  supplementary  assessment; 
but  in  the  last  named  case,  in  order  to  avoid  delay,  the  city  council  may 
advance  such  balance  out  of  any  appropriate  fund  in  the  treasury,  and 
reimburse  the  same  from  the  collections  of  the  assessment.  Pending  the 
collection  and  payment  of  the  amount  of  the  judgment  and  damages,  the 
court  may  order  such  stay  of  proceedings  as  may  be  necessary.  [Statutes 
1889,  page  75.} 


CONDEMNATION  -  COMPENSATION       Mar^hlb^8  °f  ACt  °f       263 


No  condemnation  proceeding:  can  be  inaugurated  under 
the  power  of  eminent  domain,  or  by  virtue  of  the  provisions 
of  section  18  of  the  act,  until  the  municipality  shall  have 
acquired  jurisdiction  so  to  do,  by  the  passage  of  a  valid  res- 
olution of  intention;  and  if  the  resolution  of  intention  does 
not  specify  the  exterior  boundaries  of  an  assessment  district, 
it  does  not  confer  upon  the  city  jurisdiction  to  take  any 
steps  toward  making  the  improvement,  and  cannot  be  used 
as  the  basis  of  any  action  for  condemnation  of  the  land 
sought  to  be  included  in  the  improvement.  [City  of  Los 
Angeles  v.  Dehail,  97  Gal.  13.  See  section  605,  Dillon  on 
Municipal  Corporations,  3rd  ed.]  But  see  City  and  County  of 
San  Francisco  v.  Kiernan,  33  Pac.  Rep.  724,  where  Mr. 
Commissioner  Vanclief,  said:  "The  court  first  rendered  an 
interlocutory  judgment,  requiring  the  plaintiff,  within  thirty 
days,  to  pay  to  each  defendant,  or  to  the  clerk  of  the  court 
for  his  use,  the  sums  of  money  awarded  to  him  by  the  jury 
for  the  value  of  his  land  condemned,  and  for  damages  to 
his  land  not  condemned.  After  plaintiff's  compliance  with 
the  interlocutory  order,  by  paying  into  court  the  money 
awarded  to  each  defendant,  the  court  rendered  final  judg- 
ment of  condemnation.  Whether  the  money  thus  tendered 
and  paid  into  court  for  their  use  had  been  obtained  by 
plaintiff  through  regular  or  irregular  assessments  on  the 
property  of  others,  did  not  concern  the  appellants,  [defend- 
ants in  the  condemnation  suit,]  nor  affect  the  right  of  the 
plaintiff  to  condemn  their  lands  which  had  not  been 
assessed.  The  proceedings  to  assess,  and  to  enforce  the 
payment  of  assessments  are  entirely  distinct  from  actions 
to  condemn  land.  There  is  no  pretense  that  the  money 
tendered  was  not  the  property  of  the  plaintiff,  nor  that  it 
did  not  amount  to  just  compensation.  Therefore  the  rights 
of  the  appellants  in  this  action,  [defendants  in  an  action  by 
the  city  to  condemn]  could  not  have  been  prejudiced  by 
defects  in  proceedings  to  assess  the  property  of  others." 

Even  where  lands  are  in  terms  taken,  it  may  be 
questioned  whether  the  title  to  the  fee  passes  absolutely  to 
the  municipality.  The  prevailing  doctrine  in  such  cases  is, 
that  the  title  vests  only  to  the  extent  necessary  for  the  pur- 
pose for  which  the  property  is  taken.  No  more  of  the  title 
is  divested  from  the  former  owner  than  what  is  necessary 
for  the  public  use.  [Heyneman  v.  Blake,  19  Cal.  579,  597.] 

Compensation  must  be  made  in  advance,  or  a  fund  must 
be  provided,  out  of  which  compensation  must  be  made  so 
soon  as  the  amount  can  be  determined.  The  property  of 
the  citizen  cannot  be  taken  from  him  until  ample  means  of 


264  STREET  WORK  LAW STREET    OPENING  ACT 

remuneration  are  provided.  [Colton  v-  Rossi,  9  Gal.  595; 
McCann  v.  Sierra  Co.,  7  Gal.  121.] 

When  the  street  is  finally  established,  the  party  whose 
land  has  been  taken  is  entitled  to  payment,  although  the 
street  has  not  been  opened.  [Section  614  Dillon's  Municipal 
Corporation?,  3rd  ed.] 

When  the  purpose  for  which  land  is  to  be  taken,  to  open  a 
street  for  example,  is  as  well  met  by  construing  the  authority 
to  warrant  the  taking  of  an  easement  only  as  of  the  fee,  the 
grant,  if  doubtful,  will  be  construed  most  favorably  to  the 
citizen.  [Section  603  Dillon's  Municipal  Corporations, 3rd  ed.] 

In  an  action  to  condemn  a  parcel  of  land  for  a  public 
street,  evidence  tending  to  show  a  former  dedication  by  the 
owner,  for  the  purpose  of  establishing  the  amount  of  dam- 
age or  compensation,  is  not  admissible.  As,  if  there  had 
been  a  dedication,  an  action  to  condemn  would  not  lie,  and 
in  an  action  to  condemn  the  question  of  dedication  is  not 
involved  for  any  purpose.  Either  the  land  has  been 
dedicated,  and  is  already  a  public  street,  or  the  defendant 
is  the  owner.  [San  Jose  v.  Reed,  65  Cal.  241.] 

The  provision  of  section  18  of  the  act  that  "the  complaint 
[in  an  action  to  condemn]  may  aver  that  it  is  necessary  for 
the  city  to  take  or  damage  and  condemn  the  said  lands,  or 
an  easement  therein,  as  the  case  may  be,  without  setting 
forth  the  proceedings  herein  provided  for,  and  the  resolution 
and  ordinance  ordering  said  work  to  be  done  shall  be  con- 
clusive evidence  of  such  necessity"  is  constitutional.  City 
and  County  of  San  Francisco  v.  Kiernan,  33  Pac.  Rep.  721, 
where  Mr.  Commissioner  Vanclief  said:  "It  is  contended 
that  this  provision  [of  section  18]  is  unconstitutional,  both 
as  to  the  form  of  the  complaint,  and  as  to  the  conclusive- 
ness  of  the  evidence.  As  to  the  form  of  the  complaint,  in 
an  action  merely  to  condemn,  I  think  the  provision  is 
uriobjectional,  whether  such  a  complaint  in  an  action  to 
enforce  an  assessment,  would  be  subject  to  the  objection 
here  made,  is  a  question  not  involved  in  this  action." 

When  the  several  steps  provided  by  the  statute  for 
acquiring  jurisdiction  have  been  regularly  taken,  and  the 
resolution  and  ordinance  ordering  the  work  have  been  reg- 
ularly adopted,  the  action  of  the  council  is  final  and  con- 
clusive of  the  necessity  of  the  improvement,  and  the  courts 
may  not  adjudicate  the  question  of  such  necessity  in  an 
action  or  proceeding  for  condemnation  of  lands  necessary 
to  the  improvement;  and  therefore,  if  the  answer  sets  up 
that  the  proceedings  were  inaugurated,  and  the  action  to 
condemn  was  instituted  upon  the  motion  and  at  the  request 
of  a  railroad  corporation,  for  the  purpose  and  benefit  of 


CONDEMNATION    PROCEEDINGS       MarJh  {?  f889  °f       265 

such  railroad  company,  the  court  may  strike  out  such 
allegations  in  the  answer;  the  question  sought  to  be  raised 
by  such  allegations  is  one  going  to  the  public  character  of 
the  use  and  necessity  for  its  establishment,  rnd  as  such  is 
properly  solvable  by  the  city  council  only.  [City  of  Santa 
Ana  v.  flarlin,  No.  19,030,  decided  September  13,  1893.]  So 
also,  the  mere  fact  that  individuals  have  subscribed  monev 
or  given  a  bond  to  the  city  to  contribute  toward  the  expense 
of  laying  out  a  street  will  not  vitiate  the  proceedings,  or 
prove  that  the  land  was  taken  for  the  accommodation'  of 
private  persons,  and  not  for  public  use.  [Id.\ 

In  this  case  of  City  of  Santa  Ana  v.  Harlin,  Mr.  Com- 
missioner Searls,  said:  "Under  the  act  of  March  6,  1889, 
statutes  of  1889,  page  70,  the  power  to  order  the  opening  of 
streets  in  municipalities,  and  the  method  of  its  exercise,  is 
conferred  upon  the  city  council  or  legislative  department  of 
the  municipality.  Provision  is  made  whereby  those  inter- 
ested and  objecting  to  the  improvement  and  to  various  of  the 
measures  for  carrying  it  out  may  be  heard  and  their  objec- 
tions passed  upon  by  the  council,  and  when  the  several  steps 
provided  by  the  statute  have  been  taken  and  the  resolution 
and  ordinance  ordering  said  work  have  been  regularly 
adopted,  the  action  of  the  council  is  final  and  conclusive  of 
the  necessity  of  the  improvement,  and  the  courts  may  not 
adjudicate  the  question  of  such  necessity  in  an  action  or 
proceeding  for  condemnation  of  lands  necessary  to  the 
improvement.  [See  section  18  of  statutes  of  1889,  p.  75; 
Tehama  Co.  v.  Bryan,  68  Cal.  57;  Butte  Co.  v.  Boydston 
(not  reported),  11  Pac.  Rep.  781;  San  Francisco  v.  Kiernan 
et  al.,  vol.  5,  Cal.,  Dec.,  p.  207.]  *  * 

There  is  no  doubt  that  in  many  instances  of  attempted 
taking  of  private  property  for  public  uses  it  devolves  upon 
the  courts  to  determine  whether  or  not  the  use  is  a  public 
use.  [Con.  Channel  Co.  v.  C.  P.  R.  R.  Co.,  61  Cal.  269;  Varick 
v.  Smith,  5  Paige  Ch.  159;  Loan  Assn.  v.  City  of  Topeka,  20 
Wall,  655.]  These,  however,  are  exceptions  to  a  general 
rule  which  recognizes  in  the  legislative  department  the 
source  of  the  power  to  determine  what  shall  be  held  to  be  a 
public  use,  and  the  action  of  the  legislature  on  the  question 
is  not,  except  in  extreme  cases,  open  to  review  by  the 
courts.  [Napa  Valley  R.  R.  Co.  v.  Napa  County,  30 
Cal.  437.]  That  the  use  of  land  for  public  streets  in  an  incor- 
porated town  is  a  public  use  is  true  beyond  controversy. 
And,  when,  as  under  the  statute  of  March  6,  1889,  the  duty 
of  determining  the  necessity  of  opening  such  streets  and 
where  as  under  that  statute  the  official  declaration  or  order 
opening  a  street  is  made  conclusive  evidence  of  the  necessity 


266  STREET  WORK  LAW STREET    OPENING    ACT 

therefor,  the  field  of  inquiry,  in  proceedings  for  the 
condemnation  of  land  for  such  purposes,  is  confined  to 
comparatively  narrow  limits." 

In  this  case  of  Santa  Ana  v.  Harlin,  it  was,  in  effect, 
stated  by  the  learned  commissioner  who  wrote  the  opinion, 
that  if  the  defendant,  in  an  action  under  section  18  of  the 
act  to  condemn,  desires  to  defend  upon  the  ground  of  any 
defect  or  irregularities  in  the  proceedings,  he  must  allege 
such  defect  or  irregularities.  In  this  connection  the  learned 
commissioner  said: 

"The  answer  contains  no  allegations  of  any  defect  or 
irregularity  in  the  proceedings,  and  hence  there  was  no 
issue  under  which  such  evidence  was  admissible.  The  case 
of  Los  Angeles  County  v.  San  Jose  Land  Co.,  96  Cal.  93r 
involved  a  like  principle  with  that  urged  by  appellant  here, 
although  under  a  different  statute." 

In  an  action  under  section  1.8  of  the  act  to  condemn,  the 
present  market  value  of  the  land,  is  the  measure  of  dam- 
ages and  not  its  use  to  the  owner  or  to  the  parties  seeking 
to  condemn  it.  [City  of  Santa  Ana  v.  Harlin,  supra. }  It 
cannot,  for  the  purpose  of  proving  the  market  value,  be 
shown  for  what  general  purposes  the  land  might  be  properly 
used,  as  it  might  be  used  for  a  great  variety  of  purposesr 
but  such  fact  would  not  enlighten  the  jury  upon  the  ques- 
tion of  its  value.  It  may,  however,  be  shown  whether  or 
not  the  land  is  adapted  to  and  peculiarly  suited  for  some 
specific  purpose,  as  that,  by  reason  of  its  location,  or  its 
characteristics  or  qualities,  it  is  peculiarly  suited  -for  a 
court  house,  or  for  a  college  or  school.  The  witnesses  are 
not  allowed  to  give  their  opinions  as  to  the  value  of  the 
property  for  a  particular  purpose,  but  they  may  state  its 
market  value  in  view  of  any  purpose  to  which  it  is  adapted. 
[Id.]  As  a  general  rule  it  is  not  competent  for  the  owner 
to  prove  what  he  has  been  offered  for  his  property,  or  what 
persons  who  have  been  looking  for  similar  property  were 
willing  to  give  for  it.  Or,  if  such  questions  are  allowed,  the 
testimony  as  to  such  offers  must  be  confined  to  a  period  near 
the  time  at  which  the  value  was  to  be  ascertained.  [Id]  Upon 
cross-examination,  however,  where  great  latitude  is  allowed 
for  the  purpose  of  testing  witnesses,  questions  of  this  char- 
acter are  allowable.  [Id.]  In  respect  to  these  rules  of 
evidence  in  such  condemnation  suits,  Mr.  Commissioner 
Searls,  in  said  case  of  City  of  Santa  Ana  v.  Harlin,  said: 

"The  next  error  assigned  relates  to  the  exclusion  of  evi- 
dence offered  by  defendant  to  show  the  uses  and  purposes 
to  which  the  land  proposed  to  be  taken  could  properly  be 
applied.  In  proceedings  for  the  condemnation  of  land,  the 


CONDEMNATION  -  EVIDENCE    OF    VALUE       ^£g\^ot    267 


present  market  value  of  the  land  is  the  measure  of  damages 
and  not  its  value  in  use  to  the  owner  or  to  the  parties  seek- 
ing to  condemn  it.  By  the  term  'present  market  value'  is 
meant  not  what  the  owner  could  realize  at  a  forced  sale, 
but  'the  price  he  could  obtain  after  reasonable  and  ample 
time,  such  as  would  ordinarily  be  taken  by  an  owner  to 
make  sale  of  like  property.'  [Little  Rock  J.  Ry.  v  Wood- 
ruff, 49  Ark.  390.] 

"In  the  Boom  Co.  r.  Patterson,  98  U.  S.  403,  it  was  said: 
'The  inquiry  in  such  cases  must  be,  what  is  the  property 
worth  in  the  market,  viewed,  not  merely  with  reference  to 
the  uses  to  which  it  is  at  the  time  applied,  but  with  refer- 
ence to  the  uses  to  which  it  is  plainly  adapted  —  that  is  to 
say,  what  it  is  worth  from  its  availability  for  valuable  uses?' 
Again  the  court  says:  'As  a  general  thing  we  should  say 
that  the  compensation  to  the  owner  is  to  be  estimated  by 
reference  to  the  uses  for  which  the  property  is  suitable, 
having  regard  to  the  existing  business  or  wants  of  the  com- 
munity, or  such  as  may  be  reasonably  expected  in  the 
immediate  future.' 

"The  peculiar  fitness  of  land  for  particular  purposes  is 
an  element  in  estimating  its  value  which  may*  be  shown, 
and  when  it  appears,  forms  a  factor  in  solving  the  problem 
of  market  value.  [San  Diego  Land,  etc.  Co.  v.  Neale,  78 
Cul.  Go  and  88  Cal.  50;  Drinkhouse  v.  S.  V.  W.  W.,  92  Cal. 
528.] 

"One  of  the  questions  ruled  as  inadmissible  was  the  follow- 
ing: 'For  what  purpose  could  that  property  be  used  properly?' 
No  doubt  the  land  in  question  could  be  properly  used 
for  a  great  variety  of  purposes,  but  it  is  not  perceived  that 
such  fact  would  enlighten  a  jury  upon  the  question  of  its 
value.  Whether  or  not  it  was  adapted  to  and  peculiarly 
suited  for  some  specific  purpose  is  quite  a  different  proposi- 
tion, and  testimony  was  introduced  in  reference  to  its  qual- 
ities, location,  surroundings,  etc.,  all  of  which  was  proper. 
The  following  question  was  asked  by  defendant:  'What 
are  the  characteristics  or  qualities  of  the  land,  Mr.  Palmer, 
that  renders  it  suitable  for  a  court  house?'  Similar  ques- 
tions tending  to  draw  out  testimony  showingthe  adaptation 
of  the  land  for  a  college,  and  for  the  purpose  of  a  school, 
etc.,  were  put  and  ruled  out  on  the  objection  of  plaintiff, 
and  the  rulings  are  assigned  as  error. 

"I  am  of  opinion  the  court  erred  in  some  of  these  rulings. 
The  rule  as  enunciated  by  Lewis  on  Eminent  Domain, 
at  section  479  is  as  follows:  'The  conclusion  from  the 
authorities  and  reason  of  the  matter  seems  to  be  that  wit- 
nesses should  not  be  allowed  to  give  their  opinions  as  to 


268       STREET  WORK  LAW STREET  OPENING  ACT 

the  value  of  property  for  a  particular  purpose,  but  should 
state  its  market  value  in  view  of  any  purpose  to  which  it  is 
adapted.  The  condition  of  the  property  and  all  its  surround- 
ings may  be  shown,  and  its  availability  for  any  particular  use. 
If  it  has  a  peculiar  adaption  for  certain  uses,  this  may  be 
shown;  and  if  such  peculiar  adaptation  adds  to  its  value 
the  owner  is  entitled  to  the  benefit  of  it.  But  when  all  the 
facts  and  circumstances  have  been  shown,  the  question  at 
last  is,  wh-at  is  it  worth  in  the  market?' 

"It  will  be  seon  from  the  foregoing  quotation,  which  is 
regarded  as  a  correct  exposition  of  the  law  on  the  subject, 
that  as  to  some  of  the  questions  seeking  to  elicit  the  value 
of  the  property  for  a  specific  purpose,  the  rulings  of  the 
court  below  were  correct.  It  should,  however,  it  is  thought, 
have  permitted  a  full  and  free  investigation  as  to  the  adapt- 
bility  of  the  land  to  the  varied  practical  purpose  to  which 
it  is  naturally  adapted.  [Central  Pacific  R.  R.  Co.  v.  Pear- 
son, 35  Gal.  247.]  Such  proof  should  be  limited  to  show- 
ing the  present  condition  of  the  property  and  the  uses  to 
which  it  is  adapted,  and  may  not  be  extended  to  specula- 
tive inquiries  as  to  possible  future  uses  under  altered  cir- 
cumstances, which  may  or  may  not  arise. 

"There  was  no  error  in  the  ruling  of  the  court  excluding 
an  answer  to  the  following  question  propounded  to  defend- 
ant when  testifying  as  a  witness  in  his  own  behalf; 
'Question.  Have  you  ever  received  offers  for  this  real 
estate  property?'  The  witness  had  just  testified  that  he 
owned  the  land  described  in  the  pleadings,  and  had  resided 
there  sixteen  years.  The  question  as  to  whether  he  had 
received  offers  for  the  property  was  in  effect  to  ask  him  if 
he  had  received  such  offers  at  any  time  in  sixteen  years. 
The  general  rule  in  estimating  the  market  value  of 
property  is  that  'it  is  not  competent  for  the  owner  to  prove 
what  he  has  been  offered  for  his  property  [C.  P.  R.  R.  Co. 
v.  Pearson,  35  Cal.  247],  or  what  persons  who  have  been 
looking  for  similar  property  were  willing  to  give  for  it.' 
[Selina  R.  R.  Co.  v.  Keith,  53  Ga.  178;  Lewis  on  Eminent 
Domain,  §  446;  see,  also,  Drinkhousev.  S.  V.W.  Wks.,  92  Cal. 
528.]  A  case  apparently  at  variance  with  the  general  line  of 
decisions  is  to  be  found  in  Muller  v.  Railway  Co.,  83  Cal. 
240,  in  which  the  court  held  a  similar  question  admissible, 
saying:  lBona  fide  offers  for  property  afford  some  test  as 
to  its  value,  and  are,  we  think,  admissible,'  quoting  Harri- 
son v.  Glover,  72  N.  Y.  451.  The  case  quoted  was  not  in 
relation  to  the  market  price  of  land,  but  related  to  a  subject 
so  different  as  to  lend  no  support  to  the  case  there  under 
discussion.  If  the  doctrine  of  Muller  v.  Railwav  Co.  can 


SUPPLEMENTAL    ASSESSMENT      ffa^'frn*  of  Act  of    269 


be  upheld,  it  must  be  only  AS  an  exception  to  a  general 
rule  applicable  only  in  peculiar  cases,  of  which  the  present 
is  not  one. 

"Again,  if  the  binding  force  of  Muller  v.  Railway  Co.  be 
admitted,  the  question  put  to  defendant  was  improper  in 
not  confining  the  witness  to  a  period  near  the  time  at  which 
the  value  was  to  be  ascertained. 

'•'Upon  cross-examination,  where  great  latitude  is  allowed 
for  the  purpose  of  testing  witnesses,  questions  of  this  char- 
acter are  conceded  on  all  hands  to  be  allowable.  The 
questions  put  upon  cross-examination  of  defendant's  wit- 
nesses and  objected  to  were  proper.  Great  liberality  is 
properly  extended  in  such  cross-examinations,  and  for  the 
purpose  of  testing  the  knowledge,  judgment  or  bias  of  the 
witness,  the  liberality  is  wisely  exercised.  In  such  cases, 
and  for  such  purposes,  much  must  be  left  to  the  discretion 
of  the  trial  court  and  it  is  only  for  an  abuse  of  discretion 
that  its  action  should  be  impugned.  The  witnesses,  Pin- 
ther,  Ames  and  Blee,  should  have  been  allowed  to  testify  as 
to  the  market  value  of  the  property.  They  were  not  experts 
in  the  severe  sense  of  the  term  but  showed  such  knowledge 
and  experience  as  to  values  of  land  in  that  neighborhood 
as  entitled  the  defendant  to  their  opinions.  [Penn.  &  N. 
Y.  R.  R.  Co.  v.  Bunnell,  81  Pa.  St.  426;  Robertson  v. 
Knapp,  35  N.  Y.  92;  LeRoy  &  W.  R.  R.  Co.  v.  Hawk,  39 
Kan.  638;  Shattuck  v.  Stoneham  R.  R.  Co.,  6  Allen,  Mass. 
117;  People  v.  Sanford,  43  Cal.  32;  San  Diego  Land,  etc.  v. 
Neale,  78  Cal.  77."] 

SECTION  19.  The  treasurer  shall  pay  such  warrants  out  of  the  appropri- 
ate fund,  and  not  otherwise,  in  the  order  of  their  presentation;  provided, 
that  warrants  for  land  or  improvements  taken  or  damaged  shall  have 
priority  over  warrants  for  charges  and  expenses,  and  the  treasurer  shall 
see  that  sufficient  money  is  and  remains  in  the  fund  to  pay  all  warrants  of 
the  first  class  before  paying  any  of  the  second.  [Statutes  1889,  page  76.] 

SECTION  20.  If  after  the  sale  of  the  property  for  delinquent  assessments 
there  should  be  a  deficiency,  and  there  should  be  unreasonable  delay  in 
collecting  the  same,  or  if  for  the  purpose  of  equalizing  the  assessments, 
supplying  a  deficiency,  or  for  any  cause  it  appears  desirable,  the  commis- 
sioners may  so  report  to  the  city  council,  who  may  order  them  to  make  a 
supplementary  assessment  and  report  the  same  in  manner  and  form  as  the 
original,  and  subject  to  the  same  procedure.  If  by  reason  of  such  supple- 
mentary assessment,  or  for  any  cause,  there  should  be  at  any  time  a  sur- 
plus, the  city  council  may  appropriate  the  same  and  declare  a  dividend 
pro  rata  to  the  parties  paying  the  same,  and  they,  upon  demand,  shall 
have  the  right  to  have  the  amount  of  such  pro  rata  dividends  refunded  to 
them,  or  credited  upon  any  subsequent  assessment  for  taxes  made  against 
said  parties  in  favor  of  said  city.  [Statutes  1889,  page  76.} 


270  STREET  WORK  LAW STREET    OPENING    ACT 

SECTION  21.  If  any  title  attempted  to  be  acquired  by  virtue  of  this  act 
shall  be  found  to  be  defective  from  any  cause,  the  city  council  may  again 
institute  proceedings  to  acquire  the  cause  as  in  this  act  provided,  or  other- 
wise, or  may  authorize  the  commissioners  to  purchase  the  same  and 
include  the  cost  thereof  in  a  supplementary  assessment  as  provided  in  the 
last  section.  {Statutes  1889,  page  76.] 

SECTION  22.  If  the  city  council-  deem  it  proper  that  the  boundaries  of 
the  districts  of  lands  to  be  affected  and  assessed  to  pay  the  damages,  cost, 
and  expenses  of  any  work  or  improvement  under  this  act,  shall  include 
the  whole  city,  then  the  commissioners  appointed  shall  proceed  in  a  sum- 
mary manner  to  purchase  the  lands  to  be  taken  or  condemned  from  the 
owners  and  claimants  thereof.  If  said  commissioners  and  the  owners  and 
claimants  cannot  agree  upon  the  price  to  be  paid  for  said  lands,  they  shall 
proceed  to  view  and  value  the  same,  and  shall  thereupon  make  a  summary 
report  to  the  city  council.  Upon  final  confirmation  of  the  report,  the 
city  council,  if  there  be  not  sufficient  money  available  in  the  city  treasury, 
shall  cause  the  cost  and  expenses  of  the  contemplated  public  improvement 
to  be  assessed  upon  the  whole  of  the  taxable  property  of  said  city,  and  to 
be  included  in  and  form  part  of  the  next  general  assessment  roll  of  said 
city,  and  with  like  effect  in  all  respects  as  if  the  same  formed  a  part  of  the 
city,  state  and  county  taxes;  and  when  the  same  shall  have  been  collected 
the  said  city  council  shall  cause  the  land  required  to  be  paid  for  or  the 
value  thereof  tendered,  and  the  said  contemplated  public  improvement 
to  be  forthwith  made  and  completed.  All  the  provisions  of  the  preceding 
sections  not  in  conflict  with  this  section  shall  be  applicable  thereto.  [Stat- 
utes 1889,  page  76.] 

SECTION  23.  1.  The  words  "work"  and  "improvement,"  as  used  in 
this  act,  shall  include  all  work  mentioned  in  section  one  of  this  act. 

#.  In  case  there  is  no  daily  or  weekly  or  semi- weekly  newspapers 
printed  and  circulated  in  the  city,  then  such  notices  as  are  herein  required 
to  be  published  in  a  newspaper  shall  be  posted  and  kept  posted  for  the 
length  of  time  required  herein  for  the  publication  of  the  same  in  a  weekly 
newspaper,  in  three  of  the  most  public  places  in  such  city.  Proof  of  the 
publication  or  posting  of  any  notice  provided  for  herein  shall  be  made  by 
affidavit  of  the  owner,  publisher  or  clerk  of  the  newspaper,  or  of  the  poster 
of  the  notice. 

3.  The  word  "municipality"  and  the  word  "city"  shall  be  understood 
and  so  construed  as  to  include  all  corporations  heretofore  organized  and 
now  existing,  or  hereafter  organized,  for  municipal  purpose. 

4.  The  term   street  superintendent  and  superintendent  of  streets,  as 
used  in  this  act,  shall  be  understood  and  so  construed  as  to  include,  and 
are  hereby  declared  to  include,  any  person  or  officer  whose  duty  it  is, 
tinder  the  law,  to  have  the  care  or  charge  of   the  streets,  or  the  improve- 
ment thereof,  in  any  city.     In  all  those  cities  where  there  is  no  street 
superintendent  or  superintendent  of  streets,  the  city  council  thereof  is 
hereby  authorized  and  empowered  to  appoint  a  suitable  person  to  dis- 
charge the  duties  herein  laid    down  as  those  of  street  superintendent  or 
superintendent  of  streets ;  and  all  the  provisions  hereof  applicable  to  the 
street  superintendent  or  superintendent  of  streets  shall  apply  to  such  per- 
sons so  appointed. 

5.  The  term  "city  council"  is  hereby  declared   to  include  any  body  or 


DEFINITIONS  Sees.  21  to  25  of  Act    97-1 

of  March  «,  1889.  £  '  A 

board  which,  under  the  law,  is  the   legislative   department  of  the  govern- 
ment of  any  city. 

6.  The   term  ' -clerk"  and  "city  clerk,"  as  used    in  this  act,  is  hereby 
declared   to  include  any  person  or  officer  who   shall   be  clerk  of  said  city 
council. 

7.  The  term  "treasurer"  or  "city  treasurer,"  as  used  in  this   act,  shall 
include  any  person  or  officer  who  shall  have  charge  and  make  payment  of 
the  city  funds. 

8.  No  publications   or   notice  other  than    that  provided  for  in  this  act 
shall    be  necessary  to  give  validity  to  any  proceedings  had  thereunder. 
[Hulutet  1889,  page  77.] 

SKCTFON  24.  The  proceedings  in  any  work  or  improvement,  such  as  is 
provided  for  in  this  act,  already  commenced  and  now  progressing  under 
any  other  act  now  in  force,  or  by  virtue  of  any  ordinance  passed  by  any 
city  council  or  board  of  supervisors  of  any  city,  county,  or  city  and  county, 
by  virtue  of  any  other  act.  now  in  force,  may,  from  any  stage  of  such  pro- 
ceedings already  commenced  and  now  progressing,  be  continued  under 
this  act  by  resolution  of  the  city  council.  The  said  work  or  improvement 
may  then  be  conducted  under  the  provisions  of  this  act  with  full  force  and 
effect  in  all  respects,  from  the  stage  of  such  proceedings  under  such  other 
acts  or  ordinances  at  and  from  which  such  resolution  shall  declare  an 
election  or  intention  to  have  said  work  or  improvement  cease  under  such 
other  act  or  ordinance  and  continue  under  this  act;  and  from  such  elec- 
tion so  made,  all  proceeding  theretofore  had  under  such  other  act  or  ordi- 
nance are  hereby  ratified,  confirmed,  and  made  valid,  and  it  shall  be 
unnecessary  to  renew  or  conduct  over  again  proceedings  had  under  such 
other  act  or  ordinance.  This  section  shall  not  apply  to  any  work  or 
improvement  proceedings  in  which  were  commenced  more  than  eighteen 
months  prior  to  the  passage  of  this  act.  {Statutes  1889,  page  77.] 

The  subject  of  section  24  providing  that  "the  proceedings 
in  any  work  or  improvement,  such  as  is  provided  for  in 
this  act,  already  commenced  and  now  progressing  under 
any  other  act  *  *  *  *  may  from  any  stage  of  such 
proceedings  *  *  *  *  he  continued  under  this  act," 
is  sufficiently  expressed  in  the  title  of  the  act  to  render 
such  provision  of  section  24  valid.  [City  and  County  of 
San  Francisco  v.  Kiernan,  33  Pac.  Rep.  721.]  It  was 
not  necessary,  immediately  upon  the  passage  of 
the  act  of  March  6,  1889,  to  declare  the  intention  of  pro- 
ceeding thereunder,  but  discretioa  might  be  used  in  deter- 
mining the  stage  at  which  the  change  should  be  made.  (Id.) 
See  said  case  of  City  and  County  of  Francisco  v.  Kiernan 
for  what  constitutes  a  commencement  of  proceedings, 
within  the  meaning  of  the  above  section  of  the  act  [section 
24  of  the  act  of  March  6,  1889,]  providing  that  any  work  or 
improvement  commenced  within  eighteen  months  before  its 
passage  may  be  continued  under  this  act. 

SECTION  25.  The  provisions  of  this  act  shall  be  liberally  construed  to 
promote  the  objects  thereof.  This  act  shall  take  effect  and  be  in  force 
from  and  after  its  passage.  [Statutes  1889,  page  78.] 


Street  Opening  /fct  of  March  23,  7  893. 


An  act  to  provide  for  laying  out,  opening,  extending,  widening, 
straightening,  diverging,  curving,  contracting,  or  closing  up, 
in  whole  or  in  part,  any  street,  square,  lane,  alley,  court  or 
place,  within  municipalities,  or  cities,  and  cities  and  coun- 
ties, of  forty  thousand  inhabitants  or  over,  and  to  condemn 
and  acquire  any  and  all  land  and  property  necessary  or  con- 
venient for  that  purpose. 

[Approved  March  23, 1893.    Statutes  1893,  p.  220.] 

The  people  of  the  state  of  California,  represented  in  senate  and 
assembly,  do  enact  as  follows : 

SECTION  1.  Be  it  enacted  :  Whenever  the  public  interest  or  convenience 
may  require,  the  city  council  of  any  municipality,  or  cities,  and  cities  and 
counties,  containing  over  forty  thousand  inhabitants,  shall  have  full  power 
to  order,  and  upon  the  petition  of  the  owners  of  a  majority  of  the  frontage 
to  be  taken  for  said  purpose  shall  order,  the  opening,  extending,  widening 
straightening,  diverging,  curving,  contracting,  or  closing  up,  in  whole  or 
in  part, of  any  street,  square,  lane,  alley,  court  or  place  within  the  bounds  of 
such  city,  and  shall  condemn  and  acquire  any  and  all  lands  necessary  or 
convenient  for  that  purpose.  [Statutes  1893,  p.  220.} 

This  street  opening  act  of  March  23,  1893,  differs  from 
the  street  opening  act  of  March  6, 1889,  principally  in  this: 
The  act  of  March  6,  1889,  applies  to  all  municipalities, 
regardless  of  population,  whereas, the  provisions  of  the  act  of 
March  23,  1893,  are  confined  to  municipalities  containing 
forty  thousand  inhabitants  or  over.  Also  the  act  of  March 
23,  1893 — section  1  thereof — authorizes  the  city  councils 
to  order  more  and  different  kinds  of  work  than  the  act  of 
March  6,  1893.  The  machinery  provided  by  the  act  of 
March  23,  1893,  for  doing  the  work  or  improvements 
authorized  by  that  act,  is  substantially  the  same  as  the 
machinery  provided  by  the  act  of  March  6,  1889,  for 
accomplishing  its  purposes.  And  therefore,  the  cases  cited 
in  the  notes  to  the  act  of  March  6,  1889,  will  not  be 
repeated  here,  but,  if  the  act  of  March  23,  1893,  be  consti- 
tutional for  any  purpose,  and  proceedings  be  had  there- 
under, the  reader  is  referred  to  the  notes  to  the  act  of 
March  6, 1889,  [supra  page  241 ,  et  seq.]  since  they  are  likewise 
applicable  to  this  act  of  March  23,  1893. 

Until  the  constitutionality  of  this  act  of  March  23,  1893, 
is  decided  by  our  Supreme  Court,  no  definite  statement  in 


CONSTITUTIONALITY    OF    ACT    OP    1893  ff0-  1,°|nA9*9,f       273 


respect  thereto,  can  safely  be  made.  But  this  much  is 
certain:  It  is  a  very  serious  question  whether  or  not  the 
act  of  March  23,  1893,  is  not  violative  of  subdivisions  7  and 
33  of  section  25  of  article  IV  of  the  constitution,  which 
are  as  follows:  "The  legislature  shall  not  pass  local  or 
special  laws  in  any  of  the  following  enumerated  cases,  that 
is  to  say:  *  *  *  Seventh:  Authorizing  the  laying 
out,  opening,  altering,  maintaining,  or  vacating  roads, 
highways,  streets,  alleys,  town  plats,  parks,  cemeteries, 
graveyards,  or  public  grounds  not  owned  by  the  state.  * 
*  *  Thirty-third:  In  all  other  cases  where  a  general 
law  can  be  made  applicable."  The  question  then  is:  Is 
the  act  of  March  23,  1893,  a  local  or  special  law?  In  view 
of  the  contrariety  of  opinion  upon  this  subject,  it  would 
not.be  wise  to  attempt  to  define  the  meaning  of  the  tarms 
"local"  and  "special"  laws.  But  it  may  be  possible  to 
determine  whether  or  not  the  act  of  March  23,  1893,  is  a 
local  or  special  law  within  the  meaning  of  those  terms  as 
applied  to  analogous  cases. 

It  is  also  a  serious  question  as  to  whether  the  act  is  not 
violative  of  section  11  of  article  I  of  the  constitution,  which 
provides  that  "all  laws  of  a  general  nature  shall  have  a 
uniform  operation." 

In  City  of  Pasadena  v.  Stimson,  91  Cal.  251,  Mr. 
Chief  Justice  Beatty  said:  "Although  a  law  is  general  and 
constitutional  when  it  applies  equally  to  all  persons 
embraced  in  a  class  founded  upon  some  natural  or  intrinsic 
or  constitutional  distinction,  it  is  not  general  or  constitu- 
tional if  it  confers  particular  privileges  or  imposes  peculiar 
disabilities  or  burdensome  conditions,  in  the  exercise  of  a 
common  right,  upon  a  class  of  persons  arbitrarily  selected 
from  the  general  body  of  those  who  stand  in  precisely  the 
same  relation  to  the  subject  of  the  law." 

In  Earl  v.  S.  F.  Board  of  Education,  55  Cal.  489,  it  was 
held  that  the  Traylor  act,  "An  act  to  add  a  new  section  to 
the  Political  Code/  *  *  *  relating  to  cities  and  counties 
having  100,000  inhabitants  or  more,"  was  local  and  special, 
and  unconstitutional. 

Mr.  Justice  Myrick,  in  his  concurring  opinion  in  this 
case,  page  495,  said:  "Subdivision  20,  section  25,  article  IV, 
prohibits  the  passage  of  special  or  local  laws,  changing 
county  seats.  Could  it  be  said  not  to  be  special  legislation 
to  pass  a  law  changing  county  seats  of  all  counties  having 
more  than  one  hundred  thousand  inhabitants,  and  prescrib- 
ing another  mode  for  counties  having  a  less  population?" 
Therefore,  while  the  Traylor  act  might  have  been  consid- 
ered special  and  local  legislation  because  made  applicable 


274    STREET  WORK  LAW STREET  OPENING  ACT  OF  1893 

only  to  cities  and  counties  having  100,000  inhabitants 
or  more,  when  there  was  but  one  city  and  county  in  the 
state,  (the  city  and  county  of  San  Francisco,)  it  will  be  seen 
from  the  above  quotation  from  the  opinion  of  Mr.  Justice 
Myrick,  that,  in  his  opinion  a  law  would  be  special,  and 
therefore  unconstitutional,  if  made  applicable  only  to  all 
counties  having  more  than  one  hundred  thousand  inhabi- 
tants. If  this  be  so,  it  is  difficult  to  perceive  why  a  law 
would  not  be  obnoxious  as  special  legislation  if  made  appli- 
cable only  to  all  municipalities,  or  cities,  or  cities  and 
counties  of  forty  thousand  inhabitants  or  more. 

In  Desmond  v.  Dunn,  55  Gal.  242,  it  was  held  that  the 
''  McClure  Charter"  was  not  a  general  law  and  was  uncon- 
stitutional, because  by  the  terms  of  the  act,  it  was  limited 
in  its  operation  to  cities  and  counties  of  more  than  100,000 
inhabitants. 

In  Miller  v.  Kister,  68  Cal.  145,  it  was  held  that  section  4 
of  the  act  of  March  18,  1885,  amending  the  act  of  March 
14,  1883,  (the  county  government  act)  was  local  or  special 
legislation,  and  unconstitutional.  In  that  case  the  grounds 
of  the  decision  were:  (1.)  That  the  amendment  in  question 
was  a  general  law.  (2.)  That,  as  a  general  law,  its  opera- 
tion was  restricted  so  that  as  to  certain  salaries  it  did  not 
apply  until  the  expiration  of  the  terms  of  the  incumbents 
then  in  office,  except  as  to  the  officers  of  counties  coming 
under  three  classes,  and  as  to  them  it  took  effect  at  a  date 
named  in  the  law.  Mr.  Justice  McKee,  delivering  the  opin- 
ion of  the  court,  said:  "The  amendatory  acts  passed  in  1885 
must  be  regarded  as  general  laws  upon  the  subjects 
embraced  by  them,  i.  e.,  the  classification  of  counties  and 
the  compensation  of  officers  within  the  classified  counties. 
But  as  general  laws  the  legislature  restricted  their  opera- 
tion as  follows:  'Section  3.  The  salaries  herein  provided 
shall  not  take  effect  nor  be  in  force  until  the  expiration  of 
the  terras  of  the  present  officers,  except  as  hereinafter  pro- 
vided. Section  4.  The  salaries  herein  provided  for  the 
officers  of  the  tenth,  thirty-fifth,  and  forty-sixth  classes, 
shall  take  effect  and  be  in  force  from  and  after  the  first 
day  of  the  first  month  next  succeeding  its  passage.' 
By  these  sections  the  operation  of  the  law  upon  the  sub- 
ject of  the  compensation  of  officers  in  the  fifty-two  counties 
of  the  state,  except  the  counties  of  three  classes,  is  sus- 
pended until  the  expiration  of  the  terms  of  the  then  incum- 
bents in  office,  and  is  put  in  force  almost  immediately  upon 
officers  of  the  three  specified  classes.  Unquestionably,  the 
legislature  has  the  power  to  suspend  the  operation  of  the 
general  laws  of  the  state.  But  when  it  does  so,  the  suspen- 


CONSTITUTIONALITY    OF    ACT    OF    1893  Marches  IS  °f       275 

sion    must    be  general,  and   cannot  be  made  in  individual 
cases  or  for  particular  localities.'' 

It  was  held  in  that  case  that  the  law  was  not 
uniform  in  its  operation,  because  the  act,  itself, 
declared  that  it  did  not  operate  upon  the'  large 
majority  of  the  county  officers  in  the  counties  of  the  state, 
but  that  it  should  operate  upon  the  officers  of  three  coun-' 
ties  only.  It  was  likewise  held  that  a  law  which  produced 
such  an  effect  is  special  and  local  legislation. 

If  section  4  of  the  said  act  of  March  18,  1885,  amending 
the  said  county  government  act  of  March  14,  1883,  sus- 
pended the  operation  of  a  general  law,  (the  county  govern- 
ment act  of  March  14,  1883)  for  "particular  localities"  viz., 
in  counties  of  the  tenth,  thirty-fifth,  and  forty-sixth  classes, 
and  if  for  this  reason,  it  was  special  legislation,  and  uncon- 
stitutional, it  is  difficult  to  perceive  why  the  street  opening 
act  of  March  23,  1893,  does  not  in  like  manner  suspend  the 
operation  of  a  general  law  (the  street  opening  law  of  March 
6,  1889,)  for  "particular  localities,"  viz.,  in  cities  and  cities 
and  counties  having  a  population  of  forty  thousand  or  over. 
And  if  the  said  street  opening  act  of  March  23,  1893,  does 
thus  suspend  the  operation  of  a  general  law  for  particular 
localities,  it  is  difficult  to  perceive  why  it  is  not  obnoxious 
as  special  legislation  for  the  same  reason  that  the  said  act 
of  March  18,  1885,  amending  the  county  government  act  of 
1883,  was  held  to  be  special  legislation  and  unconstitutional 
in  said  case  of  Miller  v.  Kister. 

In  City  of  Pasadena  v.  Stimson,  91  Cal.  238,  it  was  held 
that  section  870  of  the  municipal  incorporation  act  of  1883, 
requiring  cities  of  the  fifth  and  sixth  classes  to  make  an 
effort  to  agree  with  the  owners  of  land  sought  to  be  con- 
demned, before  instituting  condemnation  proceedings,  is  a 
special  la\v  making  a  forbidden  discrimination  against  two 
classes  of  municipal  corporations,  by  imposing  upon  them 
alone,  a  burdensome  condition  to  the  exercise  of  a  right 
common  to  all  public  and  private  corporations  and  to  all 
natural  persons  sui  juris  in  the  state,  from  which  condition 
all  others  are  exempt  by  the  general  law,  and  that  it  was, 
therefore,  unconstitutional  and  void.  It  being  as  special 
and  local  legislation,  in  conflict  with  section  25  of  article  IV 
of  the  constitution,  and,  as  wanting  in  uniformity  of  opera- 
tion, in  conflict  with  section  11  of  article  I  of  the  constitu- 
tion. Under  the  general  law  of  the  state  relative  to  the  exercise 
of  the  power  of  eminent  domain, — section  1001  of  the  Civil 
Code — it  is  provided  that  "any  person"  may  exercise  the 
power  of  eminent  domain  under  the  provisions  of  section 
1238  of  the  Code  of  Civil  Procedure.  But  section  870  of 


276      STREET    WORK    LAW STREET    OPENING    ACT    OF    1893 

the  said  municipal  incorporation  act  of  1883  [statutes  1883, 
page  93]  sought  to  exempt  cities  of  the  fifth  and  sixth 
classes  from  the  otherwise  general  application  of  said  section 
1001  of  the  Civil  Code,  by  requiring  cities  of  the  fifth  and 
sixth  classes  to  make  an  effort  to  agree  with  the  owner  of 
the  property,  as  a  condition  to  the  exercise  of  the  right  of 
eminent  domain. 

The  court,  per  Beatty,  C.  J.,  page  249,  said:  "Can  the  leg- 
islature make  such  a  discrimination?  'All  laws  of  a  gen- 
eral nature  shall  have  a  uniform  operation.'  [Constitution, 
art.  I,  section  11.]  'The  legislature  shall  not  pass  local 
or  special  laws  in  cases  where  a  general  law  can  be  made 
applicable/  [Constitution,  art.  IV,  section  25.]  It 
seem  to  us  perfectly  clear  that  the  clause  of  the  incor- 
poration act  requiring  cities  of  the  fifth  and  sixth  classes 
to  make  an  effort  to  agree,  while  all  other  persons  are 
exempt  from  such  condition,  is  in  plain  and  direct  conflict 
with  both  these  constitutional  inhibitions.  It  destroys  the 
uniform  operation  of  a  general  law,  and  is  special  in  a  case 
where  a  general  law  not  only  can  be  made  applicable,  but 
in  which  a  general  law  has  been  enacted,  and  in  which 
there  is  no  conceivable  reason  for  discrimination." 

In  Morrison  v.  Bachert,  112  Penn.  St.  322;  s.  c.  5 
At.  Rep.  739,  it  was  held  that  the  Pennsylvania  statute  of 
1878,  entitled  "An  act  to  ascertain  and  appoint  the  fees  to 
be  received  by  sheriffs,  etc.,  except  in  counties  containing 
'more  than  150,000  or  less  than  10,000  inhabitants"  is  an  act 
"regulating  the  affairs  of  counties/'  within  the  meaning  of 
article  3,  section  7  of  the  constitution  of  Pennsylvania,  which 
declares  that  "the  general  assembly  shall  not  pass  any  local 
or  special  law  regulating  the  affairs  of  counties,  or  pre- 
scribing the  duties  and  powers  of  officers  in  counties;"  and 
that,  inasmuch  as  the  act  excludes  counties  of  over  and 
under  a  certain  number  of  inhabitants,  it  is  a  local,  or 
special  law,  and,  as  such,  is  unconstitutional,  under  said 
section  of  the  constitution. 

In  State  v.  Trenton,  42  N.  J.  L.  486,  it  was  held  that  a 
statute  conferring  upon  all  cities  having  a  population  of 
not  less  than  25,000  inhabitants  the  power  of  issuing  bonds 
to  fund  their  floating  debt,  is  special  and  local  legislation, 
and  as  such,  is  unconstitutional  and  void. 

In  State  v.  Herrmann,  75  Mo.  340,  it  was  held  that  an 
act  to  regulate  the  appointment  of  notaries  public  in  all 
cities  having  a  population  of  100,000  or  more,  and  provid- 
ing that  the  office  of  any  notary  in  such  city,  holding  a 
commission  bearing  date  prior  to  the  passage  of  the  act, 
and  whose  term  of  office  had  not  expired  at  the  time  the 


CONSTITUTIONALITY    OF    ACT    OF    1893  Marches A1883°*    277 

act  became  a  law,  should  be  abolished,  was  special  legisla- 
tion, and  as  such  was  unconstitutional  and  void. 

In  State  v.  Mitchell,  31  Ohio  St.  592,  a  street  improve- 
ment act  providing  for  the  improvement  of  streets  in  cer- 
tain cities  of  the  second  class,  to  wit,  cities  having  a  popu- 
lation of  31,000  inhabitants,  according  to  the  last  federal 
census,  was  held  to  be  special  legislation,  and  as  such, 
unconstitutional  and  void. 

In  view  of  the  above  decisions,  it  seems  to  follow  as  a 
necessary  conclusion  that  the  said  street  opening  act  of 
March  23,  1893,  providing  for  the  opening,  etc.,  of  streets 
in  municipalities  having  40,000  inhabitants  or  over,  is 
special  and  local  legislation,  and  prevents  the  said  street 
opening  act  of  March  6,  1889,  from  having  a  uniform 
operation;  and  that,  therefore,  unless,  the  above  decisions 
have  been  modified  by  some  other  and  controlling  decision 
by  our  Supreme  Court,  or  unless  there  be  some  other  pro- 
vision of  the  constitution  justifying  such  an  act,  the  act  in 
question — act  of  March  23,  1893 — is  unconstitutional  and 
void. 

The  decision  of  our  Supreme  Court  which  seems  to  give 
the  strongest  support  to  the  constitutionality  of  the  act  of 
March  23,  1893,  is  the  decision  in  the  case  of  People  exrel., 
S.  F.  Daniels  v.  Henshaw,  76  Cal.  442.  The  facts  of  the 
Henshaw  case  are  as  follows:  The  case  came  before  the 
Supreme  Court  on  an  agreed  statement  of  facts.  It  was 
stipulated  that  S.  F.  Daniels,  the  relator  in  the  case, 
received  the  highest  number  of  votes  cast  for  police  judge  of 
the  city  of  Oakland,  at  an  election  held  March  8th,  1886. 
It  was  also  stipulated  that  said  relator,  Daniels,  was  entitled 
to  the  office  of  police  judge  of  the  city  of  Oakland,  if  that 
office  was  not  abolished  by  an  act  entitled  "  An  act  to  provide 
for  police  courts  in  cities  having  thirty  thousand  and  under 
one  hundred  thousand  inhabitants,  and  to  provide  for 
officers  thereof"  approved  March  18, 1885,  and  known  as 
the  Whitney  act.  It  was  also  stipulated  that,  if  the  said 
act  of  March  18, 1885,  did  abolish  the  office  of  police  judge 
of  the  city  of  Oakland  as  provided  by  an  act  of  the  legis- 
lature approved  March  10,  1866,  by  which  such  office  was 
established,  the  defendant,  Henshaw,  was,  in  that  event, 
entitled  to  the  office.  As  will  be  seen,  the  agreed  state- 
ments of  facts,  by  conceding  the  right  of  the  relator, 
Daniels,  to  the  office  of  police  judge,  if  "such  office  now 
exists,"  and  the  right  of  respondent,  Henshaw,  to  the  office 
of  judge  of  the  police  court  if  there  is  no  such  office  as  police 
judge,  eliminated  from  the  problem  all  questions  except  one 
viz:  Was  the  office  of  police  judge  of  the  city  of  Oakland 


278    STREET  WORK  LAW STREET  OPENING  ACT  OF  1893 

abolished  by  an  act  of  the  legislature,  entitled  "An  act  to 
provide  for  police  courts  in  cities  having  thirty  thousand 
and  under  one  hundred  thousand  inhabitants,  and  to  pro- 
vide for  officers  thereof,"  approved  March  18,  1885. 

The  question  thus  presented  was  divided  into  two  heads, 
viz :  (1.)  Did  the  legislature  seek  by  the  act  of  1885,  to  repeal 
the  act  of  1866?  (2.)  Had  it  the  power  so  to  do  by  the 
method  pursued? 

It  was  held  that  it  was  clearly  the  intention  of  the  leg- 
islature that  the  act  of  1885,  should  supersede  the  act  of 
1866  since  the  latter  statute  was  so  repugnant  to  the  former, 
that  the  two  could  not  stand  together,  and  that  therefore, 
the  act  of  1885  did  repeal  the  act  of  1866 — provided  the  act 
of  1885  was  constitutional. 

The  last  section  of  the  act  of  1885,  was  as  follows:  "This 
act  to  go  into  effect  upon  the  expiration  of  the  term  of 
office  of  the  present  police  judge  of  said  cities,  or  when  a 
vacancy  occurs  therein."  In  connection  with  the  second 
head  into  which  the  question  was  divided — had  the  legis- 
lature power  to  pass  the  act  of  1885,  by  the  method  which 
it  pursued,  and  thereby  repeal  the  act  of  1866 — it  was  con- 
tended by  counsel  for  the  relator  that  the  legislature  had 
no  such  power,  because:  .(1.)  It  was  contended  that  the 
act  of  1885  conflicted  with  section  11  of  article  I  of  the 
constitution — which  provides  that  "all  laws  of  a  general 
nature  shall  have  a  uniform  operation" — in  that,  by  its  own 
terms,  the  act  of  1885  must  take  effect  in  different  cities  at 
different  times,  that  is  to  say  when  the  term  of  the  police 
judge  expires,  or  when  there  shall  be  a  vacancy  in  his 
office.  (8.)  It  was  contended  that  the  act  was  local  and  special 
legislation,  and  therefore  violative  of  section  25  of  article 
IV  of  the  constitution. 

In  answer  to  the  first  objection,  that  the  law  was  not  uniform 
in  its  operation  because  by  its  own  terms  it  must  take  effect 
in  different  cities  at  different  time — the  court  said:  "If  the 
law  operates  equally  upon  all  the  objects  embraced  within 
it,  when  they  come  within  the  circle  or  scope  of  its  authority, 
the  uniformity  of  operation  contemplated  by  the  constitution 
is  attained.  A  general  law  to  fill  vacancies  in  office  cannot 
be  void  for  want  of  unformity  of  operation  because  such 
vacancies  must  occur  at  different  periods.  If  it  meets 
every  contingency  when  it  arises  and  treats  all  the  contin- 
gencies of  like  character  in  like  manner,  it  is  uniform  in 
its  operation.  *  *  *  Under  the  same  circumstances; 
existing  at  the  same  period  of  time,  the  law  must  ^.apply 
equally  at  the  same  time,  or  uniformity  of  operation  is  not 


CONSTITUTIONALITY    OF    ACT    OF    1893  K^.       279 


attained.     Beyond  this,  identity  as  to  time  of  application  is 
not  necessary." 

in  answer  to  the  second  contention  of  counsel,  —  that  the 
act  of  1885  was  local  and  special  legislation  —  the  court  said 
that  under  section  6  of  article  XI  of  the  constitution,  the 
legislature  had  the  po^ver  to  classify  municipal  corpora- 
tions, according  to  population,  and  that  "a  law  which  applies 
to  one  or  more,  but  not  to  all,  of  these  classes,  is  not  for 
that  reason  special  legislation." 

However,  the  reasons  clearly  pointed  out  by  Mr.  Justice 
Mr.Kinstry,in  his  dissenting  opinion  page  452,  seem  to  afford 
most  cogent  reasons  for  holding  that  the  said  act  of  1885 
was  special  legislation,  because  it  created  a  special  class  fora 
special  municipal  purpose. 

The  learned  justice  who  wrote  the  prevailing  opinion  in 
the  case  seems  to  have  demonstrated  clearly  that  the  act  of 
1885  —  the  Whitney  Act  —  was  not  obnoxious  to  the  provi- 
sions of  section  11  of  article  I  of  the  constitution,  requiring 
that  "all  laws  of  a  general  nature  shall  have  a  uniform  opera- 
tion," merely  because  the  act  might  take  effect  in  different 
cities  at  different  times.  Upon  this  branch  of  the  question 
there  seems  to  be  no  doubt  but  that,  as  stated  by  the  learned 
writer  of  the  prevailing  opinion,  "if  the  law  operates  equally 
upon  all  the  objects  embraced  within  it,  when  they  come 
within  the  circle  or  scope  of  its  authority,  the  uniformity  of 
operation  contemplated  by  the  constitution  is  attained." 
But  upon  the  other  branch  of  the  question,  viz:  Is  the  law  local 
or  special  legislation,and  therefore  unconstitutional  because 
made  to  apply  only  to  cities  having  a  population  of  thirty 
thousand  and  under  one  hundred  thousand  inhabitants?  —  the 
weight  of  reason  seems  to  lie  with  the  dissenting  opinion  of 
Mr.  Justice  McKinstry,  for,  even  admitting  that,  for  the 
incorporation,  organization  and  government  of  cities  and 
towns,  the  legislature  may  by  general  laws  classify  them, 
and  by  general  laws  provide  for  their  incorporation,  organ- 
ization and  government  according  to  such  classification, 
giving  to  each  class  a  complete  system  of  municipal  govern- 
ment, still,  as  pointed  out  by  Mr.  Justice  McKinstry  in  his 
dissenting  opinion,  the  act  in  question,  purporting  to  provide 
for  police  courts  in  cities  having  thirty  thousand  and  under 
one  hundred  thousand  inhabitants,  attempted  to  create  a 
special  class  for  a  special  and  particular  purpose.  The  class 
of  cities  to  which  the  provisions  of  the  act  were  made  appli- 
cable w^as  not  a  class  which  had  been  created  by  any  gen- 
eral law  classifying  all  the  cities  and  towns  of  the  state 
according  to  their  population.  It  was  a  different  class  from 
any  provided  for  in  any  general  law  classifying  cities  and 


280         STREET  WORK  LAW STREET    OPENING  ACT    OF    1893 

towns.  And  this  special  class  wa.«  created  not  for  all  muni- 
cipal purposes,  but  only  for  one  special  municipal  purpose, 
namely  for  the  purpose  of  creating  and  providing  for  police 
courts. 

Under  section  6  of  article  XI  of  the  constitution,  the  leg- 
islature has  the  power  by  a  general  law  to  classify  cities  and 
towns  according  to  population,  and  by  general  laws  provide 
for  the  incorporation  and  organization  of  the  cities  thus 
classified,  giving  to  each  class  a  complete  system  of  muni- 
cipal government. 

By  the  acts  of  March  2  and  13,  1883,  [statutes  1883, 
pages  24,  93J  the  legislature  had  complied  with  the  mandate 
contained  in  section  6  of  article  XI  of  the  constitution. 
By  the  act  of  March  2,  1883,  it  provided  "for  the  classifi- 
cation of  municipal  corporations/'  and  by  the  act  of  March 
13,  1883,  provided  "for  the  organization,  incorporation  and 
government  of  municipal  corporations." 

The  first  of  these  acts — act  of  March  2,  1883 — pro- 
vides that  aall  municipal  corporations  within  this 
state  are  hereby  classified  as  follows:  Those  having 
a  population  of  more  than  one  hundred  thousand 
inhabitants  shall  constitute  the  first  class;  those 
having  a  population  of  more  than  thirty  thousand  and  not 
exceeding  one  hundred  thousand  inhabitants  shall  constitute 
the  second  class,"  etc.  As  said  by  Mr.  Justice  McKinstry  in 
his  dissenting  opinion:  "The  act  of  March  18,  1885,  [the 
Whitney  act]  which  is  claimed  to  be  operative  in  the  city  of 
Oakland,  attempts  to  create  a  single  class  for  a  particular 
purpose, — a  different  class  from  any  provided  for  in  the 
general  law,  passed  in  obedience  to  the  behest  of  the  con- 
stitution for  the  classification  of  municipal  corporations. 
It  attempts  to  provide  for  a  police  court  in  every  city,  'hav- 
ing thirty  thousand  and  under  one  hundred  thousand 
inhabitants.'  ******  Will  any  one 
contend  that  after  general  laws  have  been  passed  for  the 
incorporation,  organization,  and  classification  of  cities  in 
proportion  to  population,  the  legislature  may  create,  not 
merely  a  new  classification  of  all  cities  and  towns  for  a 
special  municipal  purpose,  but  a  single  class,  differing  from 
any  included  in  the  general  classification  for  a  special 
municipal  purpose?"  ^ 

This  position  of  Judge  McKinstry  that  an  act  is  obnoxious 
as  special  legislation,  which  for  a  special  municipal  purpose, 
creates  a  special  class,  differing  from  any  included  in  the 
general  classification,  is  fully  sustained  by  the  Supreme 
Court  of  New  Jersey  in  the  case  of  State  v.  Trenton,  42  N. 
J.  L.  486. 


CONSTITUTIONALITY    OF    ACT    OF    1893  K^*.A«a?       281 


But,  as  said  by  Beatty,  C.  J.,  in  City  of  Pasadena  v.  Stim- 
son,  91  Cal.  250,  the  author  of  the  prevailing  opinion  in 
People  v.  Henshaw," assumed  that  the  class  of  cities  to  which 
the  Whitney  act — the  act  of  1885 — was  made  applicable, 
was  identical  writh  the  second  class  as  defined  in  the  gen- 
eral incorporation  act,  and  upon  that  assumption  concluded 
that  as  cities  having  a  large  population  require  different 
legislation  from  those  containing  few  inhabitants,  the 
Whitney  act,  though  applying  to  only  one  class,  was  never- 
theless constitutional."  The  class  of  cities  to  which  the 
Whitney  act  was  made  applicable  was  not  identical  with 
the  second  or  any  class  defined  in  the  general  incorporation 
act  or  in  the  municipal  classification  act  of  March  2,  1883. 
Because  the  second  class  of  municipal  corporations  defined 
by  the  said  municipal  classification  act  are  those  having  a 
population  of  more  than  thirty  thousand  and  not  exceeding 
one  hundred  thousand  inhabitants;  whereas  the  Whitney 
act  was  made  applicable  to  cities  having  thirty  thousand  and 
under  one  hundred  thousand  inhabitants. 

Now,  if  it  be  assumed  that  the  class  of  cities  to  which  the 
Whitney  act  was  made  applicable  was  identical  with  the 
second  class  as  defined  in  the  general  municipal  incorpor- 
ation act  of  March  2,  1883,the  decision  in  the  Henshaw  case 
may  be  upheld  as  good  law,  and  still  it  would  not  afford 
any  support  to  the  street  opening  act  of  March  23,  1893, 
since  the  latter  act  clearly  creates  a  special  class  of  munici- 
palities for  one  particular  special  municipal  purpose,  viz., 
for  the  purpose  of  opening  streets,  etc. 

Again,  as  pointed  out  by  Mr.  Justice  Thornton  in  his  dis- 
senting opinion  in  Ex  parte  Henshaw,  73  Cal.  507,  under 
section  1  of  article  VI  of  the  constitution,  a  police  court, 
such  as  that  established  by  the  act  of  1885,  may  be  created 
by  a  special  law  for  each  city. 

Again,  it  seems  to  have  been  assumed  by  the  author  of  the 
prevailing  opinion  in  People  v.  Henshaw,  that,  because  under 
section  6  of  article  XI  of  the  constitution,  the  legislature 
may  by  general  laws  provide  for  the  incorporation,  organi- 
zation, and  classification,  in  proportion  to  population,  of  cities 
and  towns,  that  therefore,  the  legislature,  by  an  act  applying 
to  all  cities  of  any  particular  class  created  by  the  act  of  class- 
ification, might  amend  the  charter  of  any  city  not  incorpo- 
rated under  the  general  municipal  incorporation  act.  [See 
dissenting  opinion  of  Mr.  Justice  McKinstry.]  Neverthe- 
less, even  if  this  assumption  be  admitted  to  be  correct,  it 
would  not  for  that  reason,  follow  that  the  street  opening  act 
of  March  23,  1893,  was  constitutional.  Because, 
it  cannot  well  be  said  that  an  act  dividing  all  the 


• 
282    STREET  WORK  LAW STREET  OPENING  ACT  OF  1893 

municipalities  of  the  state  into  municipalities  having  40,000 
inhabitants  or  over,  and  municipalities  having  less  than 
40,000  inhabitants,  is  an  act  providing  "for  the  classification, 
in  proportion  to  population  of  cities  and  towns."  It  seems 
rather  to  be  an  act  applicable  to  "a  class  arbitrarily  selected 
from  the  general  body  of  those  who  stand  in  precisely  the 
same  relation  to  the  subject  of  the  law,"  and  for"  this 
reason, — as  stated  by  Mr.  Chief  Justice  Beatty,  in  City  of 
Pasadena  v.  Stimson.  91  Cal.  251-2,  to  be  unconstitutional. 

Furthermore,  subdivision  7  of  section  25,  article  IV  of 
the  constitution,  expressly  prohibits  all  special  or  local 
legislation  "authorizing  the  laying  out,  opening,  alteringr 
maintaining,  or  vacating  roads,  highways,  streets,  alleysy 
town  plats,  parks,  cemeteries,  grave  yards,  or  public  grounds 
not  owned  by  the  state."  Therefore,  while  under  section  6 
of  act  XI,  "the  legislature,  by  general  laws,  shall  provide 
for  the  incorporation,  organization,  and  classification,  in 
proportion  to  population,  of  cities  and  towns,"  still  said 
subdivision  7  of  section  25,  article  IV  might,  perhaps,  be 
regarded  as  constituting  an  exception  to  the  general  rule  con- 
tained in  this  part  of  section  6  of  article  XI.  That  is  to  sayy 
under  section  6  of  article  XI,  the  legislature  may  pass  a  gen- 
eral law  providing  for  a  classification  of  all  of  the  cities 
and  towns  of  the  state,  in  proportion  to  population,  and,  by 
the  same,  or  another  general  law,  may  provide  a  complete 
system  of  municipal  government  for  each  class  thus  created. 
Now  it  is  possible  that  this  may  be  regarded  as  being 
intrinsically  special  or  local  legislation,  although  expressly 
allowed  by  the  constitution  for  all  general  purposes  of 
municipal  incorporation  and  organization,  with  the  possible 
exception  of  such  municipal  purposes  as  are  described  in 
said  subdivision  7  of  section  25  of  article  IV,  namely,  laying 
out,  opening,  altering,  maintaining  or  vacating  roadsr 
highways,  streets,  etc. 

In  Pasadena  v.  Stimson,  91  Cal.  251,  Mr.  Chief  Justice 
Beatty,  said  that  a  law  is  not  special  if  it  applies  to  all 
members  of  a  class,  provided  the  class  "  be  founded  upon 
some  natural  or  intrinsic  or  constitutional  distinction." 
That  is,  the  class  must  be  founded  upon  some  special 
peculiarities  or  characteristics  naturally  inhering  in 
the  class  itself,  thus  differentiating  it  from  all  others 
not  members  of  that  class.  Sex,  for  example,  affords 
an  illustration  of  such  natural  and  intrinsic  differenti- 
ating qualities.  Or  the  class  must  be  one  defined  by  the 
constitution  itself.  Thus,  in  his  dissenting  opinion  in  Peo- 
ple v.  Central  Pac.  R.  R.  Co.,  83  Cal.  414,  Mr.  Chief  Justice 
Beatty  gave  it  as  his  opinion  that  the  legislation  in  ques- 


CONSTITUTIONALITY    OF    ACT    OF    1893  March^lsa*       283 


tion  there,  —  provisions  of  the  Political  Code  relating  to  the 
assessment  and  collection  of  taxes  levied  upon  railroads 
operated  in  two  or  more  counties  —  was  not  special  because 
it  applied  to  all  railroads  of  a  class  created  and  denned  by 
the  constitution  itself.  Now  if  the  cases  cited  supra,  — 
Earle  v.  S.  F.  Board  of  Education,  55  Cal.  489;  Desmond  v. 
Dunn,  55  Cal.  242;  Miller  v,  Kister,  68  Cal.  145;  Pasadena 
V.  Stimson,  91  Cal.  230;  Morrison  v.  Bachert,  112  Penn. 
St.  322;  s.  c.  5  At.  Rep.  739;  State  v.  Trenton,  42  N.  J.  L. 
486;  State  v.  Herrmann,  75  Mo.  340;  and  State  v.  Mitchell, 
31  Ohio  St.  592,  —  were  correctly  decided,  it  would  seem  to 
follow  that  the  classes  into  which  the  said  street  opening 
act  of  March  23,  1893,  divided,  the  municipalities  of  the 
state,  are  not  classes  founded  upon  some  "  natural  or 
intrinsic  "  distinction.  And  they  are  not  classes  defined  or 
created  by  the  constitution  itself.  While  it  is  true  that  the 
constitution  [article  XI,  section  6]  allows  the  legislature  to 
classify  the  cities  and  towns  of  the  state,  in  proportion  to 
population,  so  that  they  may  be  incorporated  and  organized 
by  general  laws,  according  to  such  classification,  still  the 
constitution  itself  nowhere  classifies  the  cities  or  towns  of 
the  state.  Consequently  such  a  classification  is  not  founded 
upon  a  constitutional  distinction,  i.  e.  cities  classified 
according  to  their  population  do  not  form  any  class  created 
or  defined  by  the  constitution  itself,  as  was  the  case  in  said 
case  of  People  v.  Central  Pac.  R.  R.  Co.,  83  Cal.  393.  If, 
therefore,  cities  classified  according  to  their  population  do 
not  form  a  class  founded  upon  any  natural  or  intrinsic  dis- 
tinction, arid  do  not  form  a  class  defined  or  created  by  the 
constitution  itself,  it  is  possible  that,  though  section  6  of 
article  XI  of  the  constitution,  from  the  necessities  of  the 
case,  permits  the  legislature  by  general  laws  to  classify 
cities  and  towns  in  proportion  to  population,  and,  for  all 
general  purposes  of  municipal  incorporation,  organization 
and  government,  permits  the  legislature  by  general  laws  to 
apply  to  each  class  of  cities,  thus  legislatively  created,  a 
different  system  of  municipal  incorporation,  organization 
and  government,  still  the  provisions  of  subdivision  7  of 
section  25  of  article  IV  may  possibly  be  regarded  as  consti- 
tuting an  exception  to  the  general  provisions  of  section  6  of 
article  XI.  That  is  to  say,  it  is  possible,  and  consistent 
with  the  provisions  of  section  6  of  article  XI,  that,  as  to  one 
of  the  purposes  of  municipal  incorporation,  organization 
and  government,  namely,  the  laying  out,  opening,  widening 
and  maintaining  streets,  etc.,  the  provisions  of  section  6  of 
article  XI  do  not  apply,  and  that  for  this  particular  muiiici- 


284       STREET    WORK    LAW STREET    OPENING    ACT    OF    1893 

pal  function,  the  legislature  must  provide  by  a  general  law 
applicable  alike  to  all  the  cities  and  towns  of  the  state. 

Resume.  In  view  of  the  foregoing,  it  may,  therefore,  be 
said  that  there  are  good  reasons  for  believing  that  the  case 
of  People  v.  Henshaw,  does  not  establish  that  the  said 
street  opening  act  of  March  23,  1893,  is  a  general  law,  uni- 
form in  its  operation,  and  does  not  sustain  the  constitution- 
ality of  that  act,  for  the  following  reasons: 

1.  As  stated  by  Mr.  Chief  Justice  Beatty  in  Pasadena  v. 
Stimson,  91  Cal.  250,  the  author  of   the  prevailing  opinion 
in  the  Henshaw  case  "  assumed   that  the  class  of   cities  to 
which  the  Whitney  act — the  act  of    1885 — was  made  appli- 
cable was  identical  with  the  second  class  as  defined  in  the 
general  incorporation  act,  and,  upon   that  assumption,   con- 
cluded that  as  cities  having  a  large  population  require  dif- 
ferent legislation  from  those  containing  few  inhabitants,  the 
Whitney  act,  though  applying  to  only  one  class,  was  neverthe- 
less constitutional."     On   the    other   hand,  the  said  street 
opening  act   of  March  23,  1893,  is  not  made   applicable  to 
any  class  of  cities  created  or  denned  by  any  general  classi- 
fication or   municipal    incorporation   act.     It    creates   and 
defines  a  special  and  particular  class  of  cities  for  one  special 
and  particular  municipal  purpose. 

2.  In  his  dissenting  opinion  in  the  Henshaw  case,  Mr. 
Justice  McKinstry  says  that  an  act  which  creates  a  special 
class  of  cities  for  a  special  and  particular  purpose  is  special 
legislation  and  is  unconstitutional,  notwithstanding  the  pro- 
visions of  section  6  of  article  XI  of  the  constitution. 

3.  It  is  possible  that  the  decision  in  the  Henshaw  case, 
76  Cal.  442,  is  correct,  under  the  provisions  of  section  1  of 
article  VI  of    the  constitution,  even  if  the  law  in    question 
in     that     case     was     special    legislation.     It    was    partly 
upon  this  provision  of    the    constitution    that  Mr.  Justice 
Thornton  based  his  concurring  opinion,  76  Cal.  447.     [See 
dissenting  opinion  of  Mr.  Justice  Thornton  in  Ex  parte  Hen- 
shaw, 73  Cal.  507.] 

4-  Even  if,  under  the  provisions  of  section  6  of  article 
XI  of  the  constitution,  the  legislature  might  make  a  special 
classification  of  the  cities  and  towns  of  the  state  for  some 
particular  and  special  municipal  purpose — the  creation  of  a 
police  court,  for  example — still,  it  is  quite  possible  that  as 
to  the  opening  of  streets  and  the  other  municipal  functions 
mentioned  in  subdivision  7  of  section  25  of  article  IV  of  the  j 
constitution,  an  exception  is  created,  and  that  as  to  these 
particular  municipal  functions,  there  must  be  some  general 
law,  such  as  that  of  March  6,  1889,  operating  alike  in  all 
the  cities  of  the  state. 


CONSTITUTIONALITY    OF    ACT    OP    1893  MareV«BAi8930f    285 

Furthermore,  it  seems  to  have  been  assumed  by  the 
author  of  the  prevailing  opinion  in  People  v.  Henshaw, 
that,  under  the  provisions  of  section  6  of  article  XI  of  the 
constitution,  the  legislature  might  enact  a  law  which 
should  apply,  to  all  the  cities  included  in  any  class, 
classified  in  proportion  to  population,  even  though  some  of 
the  cities  of  such  class  might  never  have  been  incorporated 
or  organized  under  any  general  municipal  incorporation 
act,  such  as  that  mentioned  in  and  contemplated  by  said 
section  6  of  article  XL  Now,  admitting  the  correctness  of 
this  view  of  said  provision  of  the  constitution,  and  admit- 
ting that  the  decision  in  People  v.  Henshaw  was  correct,  for 
the  reasons  given  therefor  in  the  prevailing  opinion,  still 
that  case  seems  to  have  reached  the  limits  of  liberality  of  con- 
struction in  holding  that  the  Whitney  act  was  not  an  act  of 
special  or  local  legislation.  Indeed,  Mr.  Justice  Fox,  in  Ex 
parte  Ah  You,  82  Gal.  343,  in  a  dissenting  opinion,  speaking 
of  said  case  of  People  v.  Henshaw,  and  the  act  under  con- 
sideration in  that  case,  says:  "The  act  of  the  legislature 
then  under  consideration — '  An  act  to  provide  for  police 
courts  in  cities  having  thirty  thousand  and  under  one  hun- 
dred thousand  inhabitants,  and  to  provide  for  officers  there- 
of,' approved  March  18,  1885,  commonly  called  the  '  Whit- 
ney act/  [statutes  1885,  p.  213] — was,  at  the  time  of  its  pas- 
sage, as  clearly  a  special  law  as  any  ever  passed  by  a  legis- 
lative body,  and  under  the  constitution  should  have  been 
declared  void." 

In  view  of  this  clear-cut,  emphatic  language,  and  in  view 
of  the  opinions  in  the  cases  cited  supra,  page  283,  holding 
laws  similar  to  the  said  street  opening  act  of  March  23, 
1893,  to  be  special  legislation,  it  does  not  seem  probable 
that  the  constitutionality  of  said  street  opening  act  can  find 
any  material  support  from  the  decision  in  the  Henshaw 
case. 

In  conclusion  it  may  be  said  that  there  are  grave  reasons  to 
believe -the  street  opening  act  of  March  23,  1893,  to  be 
unconstitutional.  Those  reasons  are  as  follows: 

1.  A   statute  conferring  upon  all  cities,  having   a  popu- 
lation over  a  certain  number,  particular  municipal  powers, 
not  given  to  other  cities,  is  special  and  local  legislation. 

2.  The  constitution,  subdivision  7  of  section  25,  article 
IV,  expressly  provides  that  the   legislature  shall   not   pass 
any  special  or  local  laws,  authorizing  the  laying  out,  widen- 
ing, opening  of  streets,  etc. 

3.  The   act  prevents  the   act   of   March    6,    1889,  from 
having  a  uniform  operation. 

If.     The  act  does  not  confer  upon   any  of  the  classes  of 


286    STREET  WORK  LAW STREET  OPENING  ACT  OF  1893 

cities  created  by  the  general  municipal  classification  act — 
the  act  of  March  2,  1883,  "An  act  to  provide  for  the  classi- 
fication, of  municipal  corporations/'  any  municipal  powers 
relative  to  streets.  It  does  not  follow  that  classification,  but 
creates  a  special  class  for  a  special  or  particular  purpose, 
and  in  this  respect  differs  from  the  Whitney  act,  as  that 
act  was  assumed  to  be  by  the  author  of  the  prevailing  opinion 
in  People  v.  Henshaw,  which  decision,  by  the  way,  might  be 
supported  by  the  provisions  of  section  1  of  articles  VI  of  the 
constitution,  according  to  the  concurring  opinion  of  Mr. 
Justice  Thornton  in  People  v.  Henshaw,  76  Cal.  447  and 
likewise  the  dissenting  opinion  of  the  same  justice  in  Ex 
parte  Henshaw,  73  Cal.  507. 

5.  For  the  purpose  of  opening  and  widening  streets,  etc., 
the  act  divides  the  municipalities  of  the  state  into  those 
having  a  population  of  40,000  inhabitants  or  over,  and 
those  having  less.  It  is  doubtful  if  this  can  be  regarded  as 
a  "classification,  in  proportion  to  population,  of  cities  and 
towns,"  within  the  meaning  of  that  phrase  as  used  in  sec- 
tion 6  of  article  XI  of  the  constitution.  [See  Morrison  v. 
Bachert,  112  Penn.  St.  322;  s.  c.  5  At.  Rep.  739.] 

If  the  street  opening  act  of  March  23,  1893,  be  unconsti- 
tutional the  question  arises:  Does  it  expressly  or  by 
implication  repeal  the  street  opening  act  of  March  6,  1889, 
in  so  far  as  municipalities  having  a  population  of  40,000 
inhabitants  or  over,  are  concerned? 

The  act  of  March  23,  1893,  does  not  in  terms  repeal  the 
street  opening  act  of  March  6,  1889,  but  in  section  23  of  the 
former  act  it  is  provided  that  "The  act  approved 
March  sixth,  eighteen  hundred  and  eighty-nine,  entitled 
'An  act  for  opening,  widening  and  extending  streets/ 
etc.,  after  the  passage  of  this  act,  shall  not  apply  to  an}' 
city  or  city  and  county  having  a  population  of  forty  thous- 
and inhabitants  or  over." 

It  is  possible  that  if  the  act  of  March  23,  1893,  in  terms 
repealed  the  act  of  March  6,  1889,  the  latter  act  would  be 
repealed,  even  though  the  repealing  act — the  act  of  March 
23,  1893— should,  in  all  other  respects  be  unconstitutional. 
It  has  been  held  that  a  repealing  clause  in  a  statute  may 
be  valid,  though  every  other  portion  of  it  be  unconstitu- 
tional. [Ely  v.  Thompson,  3  A.  K.  Marsh  (Ky.)  70.]  But 
the  act  of  March  23,  1893,  does  not  in  terms  repeal  the 
act  of  March  6,  1889.  It  merely  provides  that  the  latter 
act — the  act  of  March  6,  1889 — shall  not  apply  to  cities 
having  a  population  of  less  than  40,000  inhabitants.  But 
if  the  act  of  March  23,  1893,  be  unconstitutional  upon  the 


CONSTITUTIONALITY    OF    ACT    OF    1893         g^'*  *°  51fi°(f, Act  of       287 


,  1893. 


ground  that  it  is  special  legislation  then,  for  the  same  rea- 
son, this  part  of  the  act — the  part  which  declares  that  the 
act  of  March  6,  1889,  shall  not  apply  to  cities  having  a 
population  of  less  than  40,000  inhabitants — must  be  uncon- 
stitutional, since,  in  that  case,  the  act  of  March  23,  1893, 
in  attempting  to  limit  the  application  of  the  act  of  March 
6,  1889,  bases  the  limitation  upon  what  is  tantamount  to 
special  legislation.  [See  County  of  Orange  v.  Harris,  97  Cal. 
600.] 

If,  therefore,  the  act  of  March  23,  1893,  be  unconstitu- 
tional and  void,  upon  the  ground  that  it  is  special  legisla- 
tion, the  act  of-  March  6,  1889,  is  still  in  full  force  and 
effect,  and  applicable  to  all  the  municipalities  of  the 
state. 

SECTION  2.  Before  ordering  any  work  to  be  done  or  improvement  made, 
which  is  authorized  by  section  one  of  this  act,  the  city  council  shall  then 
pass  a  resolution  declaring  the  intention  to  do  said  work,  describing  the 
work  or  improvement,  and  the  land  deemed  necessary  to  be  taken  there- 
for, and  specifying  the  exterior  boundaries  of  the  district  of  land  to  be 
affected  or  benefited  by  said  work  or  improvement,  and  be  assessed  to  pay 
the  damages,  costs,  and  expense  thereof. 

SECTION  3.  The  street  superintendent  shall  then  cause  to  be  conspic- 
uously posted  along  the  line  of  said  contemplated  work  or  improvement, 
and  not  more  than  three  hundred  feet  in  distance  apart,  but  not  less  than 
three  in  all,  notices  of  the  passage  of  said  resolution.  Said  notice  shall  be 
headed,  "Notice  of  Public  Work,"  in  letters  not  less  than  one  inch  in 
length,  shall  be  in  legible  characters,  state  the  fact  of  passage  of  the  reso- 
lution, its  date,  and,  briefly,  the  work  of  improvement  proposed,  and 
refer  to  the  resolution  for  further  particulars.  He  shall  also  cause  a  notice 
similar  in  substance  to  be  published  for  a  period  of  ten  days  in  one  or  more 
daily  newspapers  published  and  circulated  in  said  city,  and  designated  by 
said  city  council,  or,  if  there  is  no  daily  newspaper  so  published  and  cir- 
culated in  said  city,  then  by  four  successive  insertions  in  a  weekly  or 
semi-weekly  newspaper  so  published,  circulated,  and  designated. 

SECTION  4.  Any  person  through  whose  lands  said  proposed  street  exten- 
sion runs,  or  who  will  be  damaged  or  affected  by  said  proposed  work,  may 
within  ten  days  after  the  first  publication  of  said  notice,  file  with  the 
clerk  of  the  city  council  his  written  objections  thereto,  stating  in  what 
manner  and  to  what  extent  he  will  be  damaged,  which  objection  shall  be 
delivered  to  the  clerk  of  the  city  council,  who  shall  indorse  thereon  the 
date  of  its  reception  by  him,  and  at  the  next  meeting  of  the  city  council, 
after  the  expiration  of  said  ten  days,  lay  said  objections  before  said  city 
council,  which  shall  fix  a  time  for  hearing  said  objections,  not  less  than 
one  week  thereafter.  The  city  clerk  shall  thereupon  notify  the  persons 
making  such  objections  by  depositing  a  notice  thereof  in  the  postoffice  of 
said  city,  postage  prepaid,  addressed  to  such  objector. 

SECTION  5.  At  the  time  specified,  or  to  which  the  hearing  may  be 
adjourned,  the  city  council  shall  .hear  the  objections  filed,  and  if  the 
owners  of  a  majority  of  the  frontage  of  all  lands  to  be  assessed  for  benefits, 
as  said  owners  appear  on  the  last  preceding  annual  assessment  roll  for 


288    STREET  WORK  LAW STREET  OPENING  ACT  OF  1893 

state  and  county  taxes,  object,  in  writing,  to  said  proposed  opening, 
extending,  and  widening,  straightening,  diverging,  curving,  contracting, 
or  closing  up  of  said  street,  said  city  council  shall  sustain  said  objections,  and 
all  proceedings  therefor  shall  be  stopped  for  the  period  of  twelve  months. 
Proceedings  may  be  again  commenced  by  a  new  resolution  of  intention. 
If  the  owners  of  a  majority  of  the  frontage  of  all  streets  within  the  assess- 
ment district  do  not  object,  in  writing,  thereto,  within  the  time  specified 
in  this  act,  the  city  council  shall  be  deemed  to  have  acquired  jurisdiction 
to  order  any  of  the  work  to  be  done  or  improvements  to  be  made  which  is 
authorized  by  section  one  of  this  act. 

SECTION  6.  Having  acquired  jurisdiction,  as  provided  in  the  preceding 
section,  the  city  council  shall  order  said  work  to  ebe  done,  and  unless 
the  proposed  work  is  for  closing  up,  and  it  appears  that  no  assess- 
ment is  necessary,  shall  appoint  three  disinterested  persons,  who  shall 
constitute  a  board  of  commissioners  in  that  regard,  who  shall  have  full 
supervision  of  the  proposed  work  or  improvement  until  the  completion 
thereof  in  compliance  with  this  statute.  For  their  services  they  shall 
each  receive,  as  compensation,  not  to  exceed  five  dollars  for  every  day  of 
actual  service ;  provided,  that  said  compensation  shall  not  be  paid  for  a 
longer  term  than  six  months  for  each  district,  unless  extended  by  the 
council.  Such  extension  shall  not  exceed  two  months  at  one  time,  nor 
shall  the  term  of  office  of  said  commissioners,  for  any  district,  continue  for 
longer  than  one  year.  Such  compensation  shall  be  added  to  and  be 
chargeable  as  a  part  of  the  expenses  of  the  work  or  improvement.  Each 
of  said  commissioners  shall  file  with  the  clerk  of  the  city  council  an  affi- 
davit and  a  bond  to  the  state  of  Oalifornia,in  the  sum  of  five  thousand  dollars 
to  faithfully  perform  the  duties  of  his  office.  The  city  council  may  at  any 
time  remove  any  or  all  of  said  commissioners  for  cause,  upon  reasonable 
notice  and  hearing,  and  may  fill  any  vacancies  occurring  among  them  for 
any  cause.  At  the  end  of  the  terms  of  said  commissioners,  they  shall 
hand  over  all  unfinished  business  to  the  city  council,  who  shall  complete 
the  same.  In  all  municipalities  where  there  is  a  board  of  public  works, 
such  board  shall  constitute  the  board  of  commissioners  in  this  section  pro- 
vided for,  and  shall  perform  the  duties  of  such  commissioners,  and  their 
salaries  as  members  of  the  board  of  public  works  shall  be  in  full  compen- 
sation for  such  services.  It  shall  be  the  official  duty  of  the  city  attorney  to 
render  said  commissioners  all  necessary  legal  services ;  pnvided,  that  the 
city  surveyor  shall,  for  any  work  or  services  which  he  may  perform  by  the 
direction  of  the  common  council  or  other  legislative  department  of  the  city 
government,  receive,  in  addition  to  his  salary  allowed  by  law,  all  sums 
which  he  may  lay  out,  pay  out,  or  expend  in  the  prosecution  of  said  work, 
for  materials  or  labor  necessarily  therein  by  him  employed. 

SECTION  7.  Said  commissioners  shall  have  an  office  assigned  to  them  by 
the  city  council,  in  the  city  hall,  and  shall  have  power  to  employ  a  secre- 
tary, at  a  salary  not  to  exceed  one  hundred  and  fifty  dollars  per  month, 
and  such  other  clerical  assistance  as  shall  be  provided  them  by  the  city 
council,  the  salaries  and  fees  of  whom  shall  be  established  and  fixed  by 
said  city  council. 

SECTION  8.  All  such  charges  and  expenses  shall  be  deemed  as  expenses 
of  said  work  of  improvement,  and  be  a  charge  only  upon  the  funds  devoted 
to  the  particular  work  or  improvement  as  provided  hereinafter.  All  pay- 


COMMISSIONERS    PROVIDED    BY    ACT  ^arc^  ^sSj  ACt  °f       289 


ments,  as  well  for  the  land  and  improvements  taken  or  damaged,  and  for 
the  charges  and  expen  ses,  shall  be  paid  by  the  city  treasurer,  upon  war- 
rants drawn  upon  said  fund  from  time  to  time,  signed  by  said  commis- 
sioners, or  a  majority  of  them.  All  such  warrants  shall  state  whether 
they  are  issued  for  land  or  improvements  taken  or  damaged,  or  for 
charges  and  expenses,  and  that  the  demand  is  only  payable  out  of  the 
money  in  said  fund,  and  in  no  event  shall  the  city  be  liable  for  the  failure 
to  collect  any  assessment  made  by  virtue  hereof,  nor  shall  said  warrant  be 
payable  out  of  any  other  fund,  nor  a  claim  against  the  city. 

SECTION  9,  Said  commissioners  shall  proceed  to  view  the  lands  described 
in  the  resolution  ot  intention,  and  may  examine  \vitnesses  on  oath,  to  be 
administered  by  any  of  them.  Having  viewed  the  land  to  be  taken,  and 
the  improvements  affected,  and  considered  the  testimony  presented,  they 
shall  proceed  with  all  diligence  to  determine  the  value  of  the  land,  and  the 
damage  to  improvement  and  property  affected,  and  also  the  amount  of  the 
expenses  incident  to  said  work  or  improvement,  and,  having  determined 
the  same,  shall  proceed  to  assess  the  same  upon  the  lands  described  in 
said  district  herein  provided.  The  lands  fronting  on  said  extension  or 
widening  shall  only  be  assessed  to  the  depth  of  one  hundred  and  twenty 
feet,  or  the  full  depth  of  the  lots,  not  exceeding  one  hundred  and  fifty  feer  ; 
and  said  lands  shall  be  assessed  with  reference  to  the  amount  of  grading 
to  be  done,  and  their  location  on  the  grades  of  said  streetor  improvement; 
and  the  expenses  of  grading  said  lots  or  lands,  whether  filling  or  cutting 
shall  be  necessary  to  place  them  on  the  grade  of  said  street  or  improve- 
ment, shall  be  estimated  in  determining  the  value  of  the  land,  and  the 
damage  to  the  improvement  and  property  affected. 

SKCTION  10.  Said  commissioners  having  made  their  assessment  of  bene- 
fits ami  damage,  shall,  with  all  diligence,  make  a  written  report  thereof  to 
the  city  council,  and  shall  accompany  their  report  with  a  plat  showing  the 
land  taken,  or  about  to  be  taken,  for  the  work  or  improvement,  and  the 
lands  assessed,  showing  the  relative  location  of  each  district,  block,  lot,  or 
portion  of  lot,  and  its  dimensions,  so  far  as  the  commissioners  can  reason- 
ably ascertain  the  same.  Each  block  and  lot,  or  portion  of  lot,  taken  or 
assessed,  shall  be  designated  and  described  in  said  plat  by  an  appropriate 
number,  and  a  reference  to  it  by  such  descriptive  number  shall  be  a  suffi- 
cient description  of  it  in  any  suit  entered  to  condemn  and  in  all  respects. 
When  the  report  and  plat  are  approved  by  the  city  council,  a  copy  of  said 
plat,  appropriately  designated,  shall  be  filed  by  the  clerk  thereof  in  the 
office  of  the  recorder  of  the  county. 

SECTION  11.  Said  report  shall  specify  each  lot,  subdivision  or  piece  of 
property  taken  or  injured  by  the  widening  or  other  improvement,  or 
assessed  therefor,  together  with  the  name  of  the  owner  or  claimant  thereof, 
or  of  persons  interested  therein  as  lessees,  incumbrancers,  or  otherwise,  so 
far  as  the  same  are  known  to  such  commissioners,  and  the  particulars  of 
their  interests,  so  far  as  the  same  can  be  ascertained,  and  the  amount  of 
value  or  damage,  or  the  amount  assessed,  as  the  case  may  be. 

SECTION  12.  If  in  any  case  the  commissioners  find  conflicting  claims  of 
title  exist,  or  shall  be  in  ignorance  or  doubt  as  to  the  ownership  of  any  lot 
Of  land,  or  of  any  improvements  thereon,  or  any  interest  therein,  it  shall 
be  set  down  as  belonging  to  unknown  owners.  Error  in  the  designation  of 
the  owner  or  owners  of  any  land  or  improvements,  or  of  the  particulars  of 


290    STREET  WORK  LAW STREET  OPENING  ACT  OF  1893 

their  interest,  shall  not  affect  the  validity  of  the  assessment  or  the  con- 
demnation of  the  property  to  be  taken. 

SECTION  13.  Said  report  and  plat  shall  be  filed  in  the  clerk's  office  of 
the  city  council,  and  thereupon  the  clerk  oi  said  city  council  shall  give 
notice  of  such  filing  by  publication  for  at  least  ten  days  in  one  or  more 
daily  newspapers  published  and  circulated  in  said  city;  or  if  there  be  no 
daily  newspaper,  by  three  successive  insertions  in  a  weekly  or  semi-weekly 
newspaper  so  published  and  circulated.  Said  notice  shall  also  require  all 
persons  interested  to  show  cause,  if  any,  why  such  report  should  not  be 
confirmed,  before  the  city  council,  on  or  before  a  day  fixed  by  the  clerk 
thereof,  and  stated  in  said  notice,  which  day  shall  be  not  less  than  thirty 
days  from  the  first  publication  thereof. 

SECTION  14.  All  objections  shall  be  in  writing,  and  filed  with  the  clerk 
of  the  city  council,  who  shall,  at  the  next  meeting  after  the  day  fixed  in 
the  notice  to  show  cause,  lay  the  said  objections,  if  any,  before  the  city 
council,  which  shall  fix  a  time  for  hearing  the  same,  of  which  the  clerk 
shall  notify  the  objectors  in  the  same  manner  as  objectors  to  the  original 
resolution  of  intention.  At  the  time  set,  or  at  such  other  time  as  the 
hearing  may  be  ad  journed  to,  the  city  council  shall  hear  such  objections 
and  pass  upon  the  same ;  and  at  such  time,  or  if  there  be  no  objections  at 
the  first  meeting  after  the  day  set  in  such  order  to  show  cause,  or  such 
other  time  as  may  be  fixed,  shall  proceed  to  pass  upon  such  report,  and 
may  confirm,  correct,  or  modify,  or  may  sustain  the  objections  thereto, 
and  order  the  commissioners  to  make  a  new  report,  assessment,  and  plat, 
which  in  either  case  shall  be  filed,  and  notice  given  and  hearing  had,  as 
in  the  case  of  the  original  report;  but  no  report,  or  plat,  or  assessment 
shall  be  filed  by  said  commissioners  after  the  expiration  of  ten  months, 
after  their  appointment. 

SECTION  15.  The  clerk  of  said  city  council  shall  forward  to  the  street  sup- 
erintendent of  the  city  a  certified  copy  of  the  report,  assessment,  and  plat 
as  finally  confirmed  and  adopted  by  the  city  council.  Such  certified  copy 
shall  thereupon  be  the  assessment  roll,  and  thirty  days  after  such  filing 
shall  become  a  lien  on  the  property  assessed  therein,  for  its  proportion  of 
the  costs  of  said  improvement,  as  hereinbefore  provided. 

SECTION  16.  The  superintendent  of  streets  shall  thereupon  give  notice  by 
publication  for  ten  days  in  two  daily  newspapers  published  and  circulated 
in  said  city  and  county,  or  by  two  successive  insertions  in  a  weekly  or  semi- 
weekly  newspaper  so  published  and  circulated,  that  he  has  received  said 
assessment  roll,  and  that  all  sums  levied  and  assessed  in  said  assessment 
roll  are  due  and  payable  immediately,  and  that  the  payment  of  said  sums 
is  to  be  made  to  him  writhin  thirty  days  from  the  date  of  the  first  publica- 
tion of  said  notice.  Said  notice  shall  also  contain  a  statement  that  all 
assessments  not  paid  before  the  expiration  of  said  thirty  days  will  be  declared 
to  be  delinquent,  and  that  thereafter  the  sum  of  five  per  cent,  upon  the 
amount  of  each  delinquent  assessment,  together  with  the  cost  of  advertis- 
ing each  delinquent  assessment,  will  be  added  thereto.  When  payment  of 
any  assessment  is  made  to  said  superintendent  of  streets  he  shall  write 
the  word  "paid"  and  the  date  of  said  payment  opposite  the  respective 
assessments  so  paid,  and  the  names  of  persons  by  or  for  whom  said  assess- 
ment is  paid,  and  shall,  if  so  required,  give  a  receipt  therefor.  On  the 
expiration  of  said  thirty  days,  all  assessments  then  unpaid  shall  be  and' 


OBJECTIONS ASSESSMENT    ROLL 


become  delinquent,  and  said  superintendent  of  streets  shall  certify  such 
fact  at  the  foot  of  said  assessment  roll,  and  shall  add  five  per  cent,  to  the 
amount  of  each  assessment  so  delinquent.  The  said  superintendent  of 
streets  shall,  within  five  days  from  the  date  of  said  delinquency,  proceed  to 
advertise  and  collect  the  various  sums  delinquent  and  the  whole  thereof 
including  the  cost  of  advertising,  which  last  shall  not  exceed  the  sum  of  fifty 
cents  for  each  lot,  piece  or  parcel  of  land  separately  assessed,  by  the  sale  o>f 
the  assessed  property  in  the  same  manner  as  is  or  may  be  provided  for  the 
collection  of  state  and  county  taxes ;  and  after  the  date  of  said  delinquency, 
and  before  the  time  of  said  sale  herein  provided  for,  no  assessment  shall  be 
received  unless  at  the  same  time  the  five  per  cent,  added  thereto,  as  afore- 
said, together  with  the  cost  of  advertising  then  already  incurred,  shall  be 
paid  therewith.  Said  list  of  delinquent  assessments  shall  be  published 
daily  for  five  days  in  one  or  more  daily  newspapers  published  and  cir- 
culated in  such  city,  or  by  at  least  one  insertion  in  a  weekly  newspaper  so 
published  and  circulated,  before  the  day  of  sale  of  such  delinquent  assess- 
ment. Said  time  of  sale  must  not  be  less  than  seven  days  from  the  date  of 
the  first  publication  of  said  delinquent  assessment  list,  and  the  place  must 
be  in  or  in  front  of  the  office  of  said  superintendent  of  streets.  All  prop- 
erty sold  shall  be  subject  to  redemption  in  the  same  time  and  manner  as 
in  sales  for  delinquent  state  and  county  taxes;  and  the  superintendent  of 
streets  may  collect  for  each  certificate  fifty  cents,  and  for  each  deed  one 
dollar.  All  provisions  of  the  law  in  reference  to  the  sale  and  redemption 
of  property  for  delinquent  state  and  county  taxes  in  force  at  any  given 
time  shall  also  then,  so  far  as  the  same  are  not  in  conflict  with  the  provi- 
sions of  this  act,  be  applicable  to  the  sale  and  redemption  of  property  for 
delinquent  assessments  hereunder,  including  the  issuance  of  certificates 
and  the  execution  of  deeds.  The  deed  of  the  street  superintendent  made 
after  such  sales,  in  case  of  failure  to  redeem,  shall  be  prima  facie  evidence 
of  the  regularity  of  all  proceedings  hereunder  and  of  title  in  the  grantee. 
It  shall  be  conclusive  evidence  of  the  necessity  of  taking  or  damaging  the 
lands  taken  or  damaged,  and  of  the  correctness  of  the  compensation 
awarded  therefor.  The  superintendent  of  streets  shall,  from  time  to  time, 
pay  over  to  the  city  treasurer  all  moneys  collected  by  him  on  account  of 
any  such  assessments.  The  city  treasurer  shall,  upon  receipt  thereof, 
place  the  same  in  a  separate  fund,  designating  such  fund  by  the  name  of 
the  street,  square,  lane,  alley,  court,  or  place  for  the  widening,  opening,  or 
other  improvement  of  which  the  assessment  was  made.  Payments  shall 
be  made  from  said  fund  to  the  parties  entitled  thereto,  upon  warrants 
signed  by  the  commissioners,  or  a  majority  of  them. 

SECTION  17.  When  sufficient  money  is  in  the  hands  of  the  city  treasurer, ' 
|  in  the  fund  devoted  to  the  proposed  work  or  improvement,  to  pay  for  the 
land  or  improvements  taken  or  damaged,  and  when  in  the  discretion  of 
the  commissioners,  or  a  majority  of  them,  the  time  shall  have  come  to 
make  payments,  it  shall  be  the  duty  of  the  commissioners  to  notify  the 
owner,  possessor,  or  occupant  of  any  land  or  improvements  thereon  to 
whom  damages  shall  have  been  awarded,  that  a  warrant  has  been  drawn 
for  the  payment  of  the  same,  and  that  he  can  receive  such  warrant  at 
the  office  of  such  commissioners,  upon  tendering  a  conveyance  of  any 
property  to  be  taken ;  such  a  notification,  except  in  the  case  of  unknown 
owners,  to  be  made  by  depositing  a  notice,  postage  paid,  in  the  post  office, 


292    STREET  WORK  LAW STREET  OPENING  ACT  OF  1893 

addressed  to  his  last  known  place  of  abode  or  residence.  If,  at  the  expira- 
tion of  thirty  days  after  the  deposit  of  such  notice,  he  should  not  have 
applied  for  such  warrant  and  tendered  a  conveyance  of  the  land  to  be 
taken,  the  warrant  so  drawn  shall  be  deposited  with  the  county  treasurer, 
and  shall  be  delivered  to  such  owner,  possessor,  or  occupant  upon  tender- 
ing a  conveyance  as  aforesaid,  unless  judgment  of  condemnation  shall  be 
had,  when  the  same  shall' be  canceled. 

SECTION  18.  If  any  owner  of  land  to  be  taken  neglects  or  refuses  to 
accept  the  warrant  drawn  in  his  favor,  as  aforesaid,  or  objects  to  the 
report  as  to  the  necessity  of  taking  his  land,  the  commissioners,  with  the 
approval  of  the  city  council,  may  cause  proceedings  to  be  taken  for  the 
condemnation  thereof,  as  provided  by  law  under  the  right  of  eminent 
domain.  The  complaint  may  aver  that  it  is  necessary  for  the  city  to  take 
or  damage  and  condemn  the  said  lands,  or  an  easement  therein,  as  the 
case  may  be,  without  setting  forth  the  proceedings  herein  provided  for, 
and  the  resolution  and  ordinance  ordering  said  work  to  be  done  shall  be 
conclusive  evidence  of  such  necessity.  Such  proceedings  shall  be  brought 
in  the  name  of  the  municipality,  and  have  precedence,  so  far  as  the  busi- 
ness of  the  court  will  permit;  and  any  judgment  for  damages  therein  ren- 
dered shall  be  payable  out  of  such  portion  of  the  special  fund  as  may 
remain  in  the  treasury,  so  far  as  the  same  can  be  applied.  At  any  time 
after  trial  and  judgment  entered,  or  preceding  an  appeal,  the  court  may 
order  the  city  treasurer  to  set  apart  in  the  city  treasury  a  sufficient  sum 
from  the  fund  appropriated  to  the  particular  improvement,  to  answer  the 
judgment  and  all  damages,  and  thereupon  may  authorize  and  order  the 
municipality  to  enter  upon  the  land  and  proceed  with  the  proposed  work 
and  improvement.  In  case  of  a  deficiency  in  said  fund  to  pay  the  whole 
of  said  judgment  and  damages,  the  city  council  shall  order  the  balance 
thereof  to  be  paid  out  of  the  general  fund  of  the  treasury. 

SECTION  19.  The  treasurer  shall  pay  such  warrants  out  of  the  appropriate 
fund,  and  not  otherwise,  in  the  order  of  their  presentation;  provided,  that 
warrants  for  land  or  improvements  taken  or  damaged  shall  have  priority 
over  warrants  for  charges  and  expenses,  and  the  treasurer  shall  see  that 
sufficient  money  is  and  remains  in  the  fund  to  pay  all  warrants  of  the 
first  class  before  paying  any  of  the  second. 

SECTION  20.  If  any  title  attempted  to  be  acquired  by  virtue  of  this  act 
shall  be  found  to  be  defective  from  any  cause,  the  city  council  may  again 
institute  proceedings  to  acquire  the  land  as  in  this  act  provided,  or  other- 
wise, or  may  authorize  the  commissioners  to  purchase  the  same,  and 
include  the  cost  thereof  in  a  supplementary  assessment,  as  provided  in 
the  last  section. 

SECTION  21.  1.  The  words  "work"  and  "improvement,"  as  used  in  this 
act.  shall  include  all  work  mentioned  in  section  one  of  this  act. 

2.  In  case  there  is  no  daily  or  weekly  or  semi-weekly  newspaper  printed 
and  circulated  in  the  city,  then  such  notices  as  are  herein  required  to  be 
published  in  a  newspaper  shall  be  posted  and  kept  posted  for  the  length  of 
time  required  herein  for  the  publication  of  the  same  in  a  weekly  news- 
paper, in  three  of  the  most  public  places  in  such  city.  Proof  of  the  publi- 
cation of  posting  of  any  notice  provided  for  herein  shall  be  made  by  affida- 
vit of  the  owner,  publisher,  or  clerk  of  the  newspaper,  or  of  the  poster  of 
the  notice. 


DEFINITIONS BOARD    OP    AUDIT  Kch  23°1893°f  ACt  °f    293 

3.  The  word  "municipality"  and  the  word   "city"   shall  be  understood 
and  so  construed  as  to  include  all  corporations  heretofore  organized  and 

.now  existing,  or  hereafter  organized,  for  municipal  purposes. 

4.  The  term  "street  superintendent"  and  "superintendent  of  streets,"  as 
used  in  this  act,  shall   be  understood  and  so  construed  as  to  include,'  and 
are  hereby  declared  to  include,  any  person  or  officer  whose  duty  it  is,  under 
the  law,  to  have  the  care  or  charge  of  the  streets  or  the  improvement  there- 
of, in  any  city.     In  all  those  cities  where  there  is  no  street  superintendent 
or  superintendent  of  streets,  the  city  council  thereof  is  hereby  authorized 
and  empowered  to  appoint  a  suitable  person  to  discharge  the  duties  herein 
laid  down  as  those  of  street  superintendent  or  superintendent  of  streets, 
and  all  the  provisions  hereof  applicable  to  the  street  superintendent  or 
superintendent  of  streets,  shall  apply  to  such  persons  so  appointed. 

5.  The  term  "city   council"  is  hereby  declared  to  include  any  body  or 
board  which,  under  the  law,  is  the  legislative  department  of  the  govern- 
ment of  any  citv. 

6.  The  term  "clerk"   and   "city  clerk,"  as  used  in  this  act,  is  hereby 
declared  to  include  any  person  or  officer  who  shall  be  clerk  of  said   city 
council. 

7.  The   term  "treasurer"  or  "city  treasurer"  as  used  in  this  act,   shall 
include  any  person  or  officer  who  shall  have  charge,  and  make  payment  of 
the  city  funds. 

SECTION  22.  The  mayor,  tax  collector,  and  city  or  city  and  county  attor- 
ney, as  the  case  may  be,  of  all  municipalities  wherein  there  is  existing  at 
the  passage  of  this  act  any  commission  appointed  for  the  opening,  extend- 
ing, or  widening  of  streets  under  the  provision  of  said  act  of  March  sixth, 
eighteen  hundred  and  and  eighty-nine,  and  which  commission  is  not  with- 
in the  proviso  of  section  twenty-three  of  this  act,  are  hereby  constituted  a 
board  of  audit,  whose  duty  it  shall  be,  upon  petition  of  said  commission,  to 
carefully  examine  all  the  accounts,  bills,  and  expenditures,  made  or  con- 
tracted for  by  said  commission,  including  the  salaries  of  the  said  commis- 
sioners and  said  board  of  audit,  or  a  majority  of  its  members,  is  hereby 
authorized  to  audit  and  allow  such  amounts  as  it  shall  find  to  be  just  and 
reasonable,  and  report  said  amounts,  with  the  items  thereof  and  to  whom 
payable,to  the  city  council.  Said  report  shall  be  final  and  conclusive  as  to  said 
amounts.  The  city  council  is  authorized  to  pass  and  allow,  and  order  paid,  to 
each  of  the  persons  entitled  thereto,  the  amounts  so  found  to  be  due,  in  the 
same  manner  as  claims  and  demands  against  such  municipality  are 
passed,  allowed,  and  ordered  paid.  The  payment  of  said  amounts  shall 
be  provided  for  in  the  tax  levy  next  thereafter  made  by  said  city  coun- 
cil, and  when  said  taxes  are  collected  the  said  amounts  shall  be  paid 
out  of  the  general  fund  of  said  municipality,  in  the  same  manner  as  other 
claims  and  demands  are  paid. 

SECTION  23.  The  act  approved  March  sixth,  eighteen  hundred  and 
eighty-nine,  entitled  "An  act  for  opening,  widening,  and  extending 
streets,"  etc.,  after  the  passage  of  this  act,  shall  not  apply  to  any  city  or 
city  and  county  having  a  population  of  forty  thousand  inhabitants  or  over ; 
but  as  to  any  city  or  city  and  county  having  a  population  of  forty  thousand 
or  over  said  act  shall  not  apply ;  but  said  cities  and  cities  and  counties 
shall  be  subject  only  to  the  provisions  of  this  act  in  all  matters  embraced 
within  the  purview  of  this  act ;  provided,  however,  that  the  present  city 


294    STREET  WORK  LAW STREET  OPENING  ACT  OF  1893 

council,  or  other  governing  body  of  any  municipality  of  forty  thousand 
inhabitants  or  over,  shall  have  power,  by  a  three-fourths  vote  of  its  mem- 
bers, to  extend  the  life  of  any  existing  commission  until  its  work  shall 
have  been  completed,  as  in  said  act  provided ;  but  in  all  other  cases  in 
cities  or  cities  and  counties  of  forty  thousand  inhabitants  or  over,  the 
assessments,  plats,  and  reports  filed  by  said  commissioners  are  declared  to 
be  null  and  void,  and  all  moneys  collected  under  the  provisions  of  said  act 
shall  be  refunded  to  the  persons  from  whom  the  same  were  collected,  in 
the  same  manner  as  taxes  which  have  been  twice  collected,  and  the  said 
commissioners  are  hereby  removed  from  office ;  provided,  further,  however, 
that  in  case  of  the  lands  necessary  to  widen  or  open  any  street,  there  shall 
have  been  actually  purchased  and  conveyed  to  the  municipality,  under  the 
provisions  of  said  act  of  March  sixth,  eighteen  hundred  and  eighty-nine, 
more  than  one-half  of  the  land  necessary  for  said  improvements,  as  shown 
by  the  report  and  plat  on  file,  then  said  streets  and  the  improvement 
thereof,  shall  not  be  affected  by  this  act,  but  the  same  shall  be  completed 
as  commenced. 

SECTION  24.  This  act  shall  be  liberally  construed  to  promote  the  objects 
the  reof . 

This  act  shall  take  effect  and  be  in  force  from  tne  time  of  its  passage. 
[Statutes  1893,  page  221.} 


Sanitary  District  flct. 

It  is  a  serious  question  as  to  whether  this  sanitary  district 
act  is  constitutional  or  not.  It  provides,  [section  1,]  that 
twenty-five  persons  in  any  county,  residents  and  freeholders 
within  the  proposed  district,  may  present  to  the  board  of  su- 
perv  isors  of  such  county  a  petition  in  writing,  signed  by  them, 
stating  the  name  of  the  proposed  district,  and  setting  forth 
the  boundaries  thereof,  and  praying  that  an  election  be  held 
as  provided  by  the  act.  Section  2  provides  that  "when 
such  petition  is  presented  *  *  the  board  of  supervisors 
must  within  thirty  days  thereafter,  order  that  an  election  be 
held  as  provided  by  this  act.  The  order  *  *  *  must 
show  the  boundaries  of  the  proposed  district."  Section  4 
provides  for  an  election  at  which  every  qualified  voter,  res- 
ident within  the  proposed  district  for  the  period  requisite 
to  enable  him  to  vote  at  a  general  election,  shall  be  entitled 
to  vote,  and  that  "if  a  majority  of  the  votes  cast  at  such 
election  shall  be  in  favor  of  a  sanitary  district,  the  board  of 
supervisors  shall  make  and  cause  to  be  entered  in  the  min- 
utes an  order  that  a  sanitary  district  of  the  same  name  and 
with  the  boundaries  stated  in  the  petition  (setting  forth  such 
boundaries)  has  been  duly  established."  It  will  thus  be 
seen  that  the  boundaries  of  the  district  may  be  fixed  by  the 
petition  of  twenty-five  persons;  that  the  board  of  super- 
visors, the  legislative  body  of  the  county,  have  no  discre- 
tion in  the  matter.  They  must  call  an  election,  upon  the 
filing  of  the  petition,  and  must  declare  to  be  established  the 
very  district  described  in  the  petition,  if  a  majority  of  the 
electors,  voting  at  the  election,  cast  their  votes  in  favor  of 
the  proposed  district.  Here  is  an  attempt  to  transfer  to  a 
majority  of  the  qualified  electors  of  any  proposed  district, 
the  power  to  declare  that  such  portion  of  the  county  as  is 
specified  in  said  petition  will  be  benefited  by  sewers  and 
drains  to  be  erected  at  the  expense  of  all  the  property,  real 
and  personal,  within  the  district,  and  to  set  in  motion 
machinery  for  the  enforcement  of  a  tax  and  assessment 
against  the  minority  of  the  qualified  electors,  even  though 
such  minority  of  the  qualified  electors  may  be  the  owners 
of  a  large  majority  of  the  property  lying  within  the  pro- 
posed district.  Upon  the  principles  laid  down  in  Moulton 
v.  Parks,  64  Cal.  166,  there  would  seem  to  be  room  for  grave 


29G  STREET  WORK  LAW SANITARY    DISTRICT    ACT 

doubts  as  to  the  constitutionality  of  the  sanitary  district 
act.  In  Moulton  v.  Parks,  it  was  held  that  the  act  of  March 
25,  1868,  [statutes  1867-8,  page  316,] — an  act  to  provide  for 
the  protection  of  certain  lands  in  the  county  of  Sutter  from 
overflow,  by  the  erection  of  levee  districts — was  unconsti- 
tutional. Section  21  of  that  act  provided  that  ''whenever 
a  petition  shall  be  received  by  said  board  of  supervisors, 
from  persons  in  possession  of  more  than  one-half  of  the 
acres  of  any  specified  portion  of  said  county,  asking  to  be 
set  apart  and  erected  into  a  levee  district,  said  board  shall 
at  once  erect  such  territory  into  a  levee  district,  and  place  it 
under  the  provisions  of  this  act,  to  be  called  Levee  District, 
No.  1,  2,  3,  and  so  on,  as  the  case  may  be;  provided,  that  it 
shall  not  be  required  to  submit  the  question  of  tax  to  a  vote 
of  the  people  of  any  district  so  erected."  It  was  held  that 
this  act  was  unconstitutional  because  the  act  did  not  pro- 
vide for  the  creation  of  an  assessment  district  by  the  legis- 
lative authority  of  the  state,  or  by  a  properly  organized 
municipality,  or  by  assessors  or  commissioners  authorized 
to  ascertain  what  lands  would  be  benefited  by  the  proposed 
levees,  as  it  should  have  done  to  be  constitutional  [Cooley 
on  Taxation,  449],  but  provided,  instead,  that  on  the  presen- 
tation of  a  petition  the  board  of  supervisors  ''shall  at  once 
proceed"  to  erect  the  territory  described  in  the  petition  into 
a  levee  district,  "and  place  it  under  the  provisions  of  this 
act."  The  court  per  McKinstry,  J.,  page  183,  said:  "Here  is 
an  attempt  to  transfer  to  persons  in  possession  of  more  than 
one-half  of  the  acres  of  any  portion  of  the  county  of  Sutter 
which  they  may  specify,  the  power  to  declare  that  such  por- 
tion of  the  county  will  be  benefited  by  works  erected  at  the 
expense  of  all  the  property,  real  and  personal,  within  it, 
and  to  set  in  motion  machinery  for  the  enforcement  of  a 
tax  and  assessment  against  the  owners  of  a  majority  of  the 
acreage.  The  act  provides  for  no  judicial  inquiry  as  to 
what  lands  will  be  benefited  by  a  proposed  work,  nor  does 
it  contain  any  declaration  by  the  state  legislature  that  any 
specified  lands  will  be  benefited,  nor  provide  that  such 
declaration  may  be  made  by  the  supervisors,  or  by  any  offi- 
cer or  agent  of  the  state  or  county.  When  those  in  posses- 
sion of  more  than  one-half  of  the  land  by  them  specified 
file  a  petition  they  assert  that  they  will  be  benefited  by  the 
proposed  work,  and  they  also  attempt  to  determine  that  the 
owners  of  other  lands  will  be  benefited.  They  determine 
that  the  work  will  benefit  all,  and  attempt  to  levy  a  tax 
upon  others  as  well  as  themselves,  which  shall  be  expended 
in  work  of  joint  as  well  as  several  benefit.  No  man  can  be 
a  judge  in  his  own  cause,  and  no  man's  property  can  be 


CONSTITUTIONALITY    OF    ACT         Act  of  March  31, 1891.       297 

taken  without  due  process  of  law."  And  on  page  184,  the 
learned  judge  said:  "The  supervisors  have  no  discretion  to 
reject  the  petition,  or  to  modify  or  change  the  boundaries 
of  the  district,  or  otherwise  to  exercise  any  judgment  with 
reference  to  the  expediency  of  fixing  the  limits  of  the  assess- 
ment district  where  the  petition  fixes  them.  One  man  in 
possession  of  3000  acres  of  land,  which  he  believes  will  be 
protected  by  a  levee,  may  thus  decree  that  5999  acres  (of 
which  2999  are  owned  by  one  hundred  other  men),  will  be 
benefited  by  a  levee,  and  arbitrarily  adjudge  the  one  hun- 
dred to  pay  almost  half  of  the  expense  of  building  it. 
Under  our  constitution  there  never  has  been  power  in  the 
legislature  to  delegate  such  legislative  functions  to  interested 
individuals." 

In  like  manner,  it  may  be  said  of  the  sanitary  district  act: 
"The  supervisors  have  no  discretion  to  reject  the  petition, 
or  to  modify  or  change  the  boundaries  of  the  district,  or 
otherwise  to  exercise  any  judgment  with  reference  to  the 
expediency  of  fixing  the  limits  of  the  assessment  district 
where  the  petition  fixes  them."  It  is  true  that  under  this 
sanitary  district  act  the  board  of  supervisors  are  not  com- 
pelled to  at  once  proceed  to  erect  the  territory  described  in 
the  petition  into  a  sanitary  district,  as  was  the  case  in  said 
levee  district  act  of  1868,  but  if  a  majority  of  the  qualified 
electors  voting  at  the  election  vote  for  the  district,  the 
supervisors  must  then  make  an  order  that  a  sanitary  district, 
of  the  name  and  with  the  boundaries  stated  in  the  petition, 
has  been  duly  established.  So  that  the  whole  matter  is  vir- 
tually taken  out  of  their  hands  and  left  to  the  discretion  of 
a  majority  of  the  electors,  who  m&y  own  a  minority  of  the 
property  affected  and  liable  to  be  taxed  or  assessed.  The 
supervisors  exercise  no  judgment  whatever  with  reference 
to  fixing  the  boundaries  of  the  district. 

In  Moulton  v.  Parks  it  was  said  that  the  owners  of  a  bare 
majority  of  the  acreage  (3000  acres,  for  example)  might 
arbitrarily  decree  that  the  owners  of  a  minority  of  the  acre- 
age (2999  acres,  for  example)  should  contribute  toward  the 
expense  of  building  a  levee.  But  in  the  sanitary  district 
act,  the  owners  of  a  minority  of  the  acreage  might  arbitra- 
rily decree  that  the  owner  of  a  majority  of  the  acreage 
should  pay  the  greater  part  of  the  burdens.  Thus,  suppose 
a  community  of  twenty-six  persons.  One  of  these  owns 
twenty-five  twenty-sixtns  of  tne  land  in  the  proposed  dis- 
trict. The  remaining  twenty-five  own  one  twenty-sixth  of 
the  land  in  the  proposed  district.  These  latter  file  a  peti- 
tion describing  the  proposed  district.  The  supervisors, 
without  any  discretion  in  the  matter,  call  an  election.  The 


298  STREET    WORK    LAW SANITARY    DISTRICT    ACT 

twenty-five  owners  of  one  twenty-sixth  vote  for  the  estab- 
lishment of  the  district.  The  owner  of  the  twenty-five 
twenty-sixths  of  all  the  property  in  the  district  votes  against 
it.  Therefore,  if  there  is  any  difference  between  this  sani- 
tary district  act  and  the  levee  district  act,  considered  in 
Moulton  v.  Parks,  it  is  that  the  latter  act  empowered  the 
owners  of  a  majority  of  the  lands,  liable  to  be  taxed  for  the 
proposed  improvement,  to  declare  that  such  portion  of  the 
county  as  they  might  specify  would  be  benefited  by  the 
works  to  be  erected  at  the  expense  of  all  the  property  in  the 
district,  and  to  set  in  motion  machinery  for  the  enforce- 
ment of  a  tax  and  assessment  against  the  owners  of  a 
minority  of  the  acreage.  Whereas  the  sanitary  district  act 
gives  the  same  powers  to  the  owners  of  a  minority  of  the 
lands  liable  to  be  taxed,  to  be  exercised  against  the  owner 
or  owners  of  a  majority  of  the  lands. 

Furthermore,  the  sanitary  district  act  does  not  provide 
for  the  establishment  of  the  district  in  either  of  the  modes 
which,  according  to  Mr.  Justice  Cooley,  seern  to  be  essential, 
namely  (1.)  by  the  legislative  authority  of  the  state,  or, 
when  properly  organized,  by  a  municipality;  or,  (2.)  by 
assessors  or  commissioners,  authorized  by  law  to  assess  such 
lands  as  in  their  opinion  are  specially  benefited,  and  ought, 
therefore,  to  contribute  to  the  cost.  [Cooley  on  Taxation, 
449.] 

Furthermore,  the  sanitary  districts  which  the  act  provides 
for  are  public  corporations  for  the  exercise  of  a  most  impor- 
tant municipal  function,  viz.,  the  building  and  maintaining 
of  sewers  and  drains,  in  the  exercise  of  which  function  the 
corporations  are  empowered  to  exercise  the  sovereign  power 
of  taxation,  a  power  which  may,  perhaps,  be  justly  regarded 
as  the  most  important  attribute  of  sovereignty.  [See  Dean 
v.  Davis,  51  Cal.  406;  People  v.  Williams,  56  Gal.  647; 
Reclamation  District  v.  Hagar,  66  Cal.  54;  Irrigation  Dis- 
trict v.  Williams,  76  Cal.  360;  In  re  Madera  Irrigation  Dis- 
trict, 92  Cal.  296.]  Under  the  act  a  sanitary  district  may 
be  created  wholly  or  partly  within  a  city  or  town  or  other 
public  corporation  organized  for  municipal  purposes  and 
exercising  municipal  functions,  or  the  boundaries  of  the  san- 
itary district  may  coincide  and  be  coterminous  with  the  boun- 
daries of  such  city,  town,  or  other  municipal  corporation.  It  is 
possible,  therefore,  that  the  act  may  be  considered  as  delegat- 
ing to  individuals,  viz.,  the  board  of  directors  of  the  sanitary 
district,  and  the  electors  therein,  powers  over  municipal 
improvement,  and  to  exercise  municipal  functions  that 
properly  belong  to  the  regular  municipal  authorities  of  a 
city  or  town;  and,  it  is  possible,  that  for  this  reason  the  act 


CONSTITUTIONALITY    OF    ACT      fgj^  J^f*  Act  of       299 


may  be  violative  of  section  13  of  article  XI  of  the  constitu- 
tion. This  point  was  raised  against  the  Wright  Irrigation 
Act  in  Irrigation  District  v.  Williams,  76Cal.  3«0;  Modesto 
Irrigation  District  v.  Tregea,  88  Gal.  334,  and  In  re  Madera 
Irrigation  District,  92  Cal.  296;  and,  while  the  point  was 
decided  in  favor  of  the  constitutionality  of  that  act  in  those 
cases,  still,  as  said  by  the  court  on  rehearing  in  the  latter 
case,  [92  Cal.  344]  "a  system  of  irrigation  contemplated  by 
the  act  in  question  |the  Wright  act]  cannot  be  considered 
as  a  'municipal  purpose/  within  the  scope  of  the  organiza- 
tion of  a  city  or  town,  and  there  can  be  no  conflict  between 
a  corporation  organized  under  the  act  to  produce  a  system 
of  irrigation  within  the  district,  and  the  municipal  incorpo- 
ration of  the  town  of  Madera;"  whereas,  the  purpose  of  the 
sanitary  district  act  —  the  construction  of  sewers,  drains,  etc. 
—  is  distinctively  a  municipal  purpose,  and  this  language  of 
the  court  in  In  re  Madera  Irrigation  District  tends  to  cast 
doubt  upon  the  constitutionality  of  the  sanitary  district  act, 
rather  than  to  clear  up  the  question.  However,  it  is  not 
within  the  purview  of  this  book  to  discuss  these  questions 
of  constitutional  law,  but  merely  to  briefly  raise  such  ques- 
tions of  the  constitutionality  of  these  street  work  acts  as 
have  suggested  themselves  to  the  mind  of  the  author. 

An  Act  to  provide  for  the  formation,  government,  operation, 
and  dissolution  of  sanitary  districts  in  any  part  of  the  state, 
for  the  construction  of  sewers  and  other  sanitary  purposes] 
the  acquisition  of  property  thereby,  the  calling  and  conduct- 
ing of  elections  in  such  districts',  the  assessment,  levy,  col- 
lection, custody,  and  disbursement  of  taxes  therein:  the 
issuance  and  disposal  of  the  bonds  thereof,  and  the  deter- 
mination of  their  validity,  and  making  provision  for  the  pay- 
ment of  such  bonds,  and  the  disposal  of  their  proceeds. 

[Approved  M*.rch  31,  1891,  statutes  1891,  p  223.1 

The  people  of  the  state  of  California,  represented  in  senate  and  assem- 
bly, do  enact  as  follows  : 

SECTION  1  .  Whenever  twenty-five  persons  in  any  county  of  the  state 
shall  desire  the  formation  of  a  sanitary  district  within  the  county,  they 
may  present  to  the  board  of  supervisors  of  such  county  a  petition,  in  writ- 
ing, signed  by  them,  stating  the  name  of  the  proposed  district,  and  setting 
forth  the  boundaries  thereof,  and  praying  that  an  election  be  held  as  pro- 
vided by  this  act.  Each  of  the  petitioners  must  be  a  resident  and  free- 
holder within  the  proposed  district. 

SECTION  2.  When  such  petition  is  presented  as  above  provided,  the 
board  of  supervisors  must,  within  thirty  days  thereafter,  order  that  an 
election  be  held  as  provided  by  this  act.  The  order  must  fix  the  day  of 


300          STREET  WORK  LAW SANITARY    DISTRICT    ACT 

such  election,  which  must  be  within  sixty  days  from  the  date  of  the  order, 
and  must  show  the  boundaries  of  the  proposed  district,  and  must  state 
that  at  such  election  persons  to  fill  the  offices  provided  by  this  act,  viz.,  a 
sanitary  assessor,  and  five  members  of  the  sanitary  board,  will  be  voted 
for.  This  order  shall  be  entered  in  the  minutes  of  the  board,  and  shall  be 
conclusive  evidence  of  the  due  presentation  of  a  proper  petition,  and  of  the 
fact  that  each  of  the  petitioners  was  at  the  time  of  the  signature  and  pres- 
entation of  such  petition  a  resident  and  freeholder  within  the  limits  of  the 
proposed  district. 

SECTION  3.  A  copy  of  such  order  shall  be  posted  for  four  successive 
weeks  prior  to  the  election,  in  three  public  places  within  the  proposed  dis- 
trict, and  shall  be  published  for  four  successive  weeks  prior  to  the  election, 
in  some  newspaper  published  in  the  proposed  district,  if  there  be  one,  and 
if  not,  in  some  newspaper  published  in  the  county.  It  shall  be  sufficient 
if  the  order  be  published  once  a  week. 

SECTION  4.  The  board  of  supervisors,  at  any  time  prior  to  the  election, 
shall  select  one  polling  place  within  the  proposed  district,  and  make  all 
suitable  arrangements  for  the  holding  of  such  election.  The  tickets  shall 
contain  the  words  "For  a  Sanitary  District,"  or  "Against  a  Sanitary  Dis- 
trict," as  the  case  may  be,  and  the  name  of  a  person  for  sanitary  assessor, 
and  the  names  of  five  persons  for  members  of  the  sanitary  board.  Such 
election  shall  be  conducted  in  accordance  with  the  general  election  laws 
of  the  state,  so  far  as  the  same  shall  be  applicable,  except  as  herein  other- 
wise provided.  Every  qualified  elector,  resident  within  the  proposed  dis- 
trict for  the  period  requisite  to  enable  him  to  vote  at  a  general  election, 
shall  be  entitled  to  vote  at  the  election  above  provided  for.  If  a  majority 
of  the  votes  cast  at  such  election  shall  be  in  favor  of  a  sanitary  district, 
the  board  of  supervisors  shall  make  and  cause  to  be  entered  in  the  min- 
utes an  order  that  a  sanitary  district  of  the  name  and  with  the  boundaries 
stated  in  the  petition  (setting  forth  such  boundaries)  has  been  duly  estab- 
lished, and  said  order  shall  be  conclusive  evidence  of  the  fact  and  regular- 
ity of  all  prior  proceedings  of  every  kind  and  nature  provided  for  by  this 
act  or  by  law,  and  of  the  existence  and  validity  of  the  district.  If  a 
majority  of  the  votes  cast  shall  be  against  a  sanitary  district,  the  board 
shall,  by  order,  so  declare;  no  other  proceedings  shall  be  taken  in  relation 
thereto  until  the  expiration  of  one  year  from  the  presentation  of  the  peti- 
tion. 

SECTION  5.  Every  sanitary  district  formed  under  the  provisions  of  this 
act  shall  have  power  to  have  and  use  a  common  seal,  alterable  at  the 
pleasure  of  the  sanitary  board;  to  sue  and  be  sued  by  its  name;  to  con- 
struct and  maintain  and  keep  clean  such  sewers  and  drains  as  in  the  judg- 
ment of  the  sanitary  board  shall  be  necessary  or  proper,  and  for  this  pur- 
pose to  acquire,  by  purchase,  gift,  devise,  condemnation  proceedings,  or 
otherwise,  such  real  and  personal  property  and  rights  of  way,  either  within 
or  without  the  limits  of  the  district,  as  in  the  judgment  of  the  sanitary 
board  shall  be  necessary  or  proper,  and  to  pay  for  and  hold  the  same;  to 
make  and  accept  any  and  all  contracts,  deeds,  releases  and  documents  of 
every  kind  which,  in  the  judgment  of  the  sanitary  board,  shall  be  neces- 
sary or  proper  to  the  exercise  of  any  of  the  powers  of  the  district,  and  to 
direct  the  payment  of  all  lawful  claims  and  demands  against  it;  to  issue 
bonds  as  hereinafter  provided,  and  to  assess,  levy  and  collect  taxes  to  pay 


ELECTION ASSESSMENT  Sch sf  8is?)l  A°l  °f      301 

the  principal  and  interest  of  the  same,  and  the  cost  of  laying  and  the 
expense  of  maintaining  any  sewer  or  sewers  that  may  be  constructed  sub- 
sequent to  the  issuance  of  said  bonds,  or  any  lawful  claims  against  said 
district,  and  the  running  expenses  of  the  district;  to  employ  all  necessary 
agents  and  assistants,  and  pay  the  same;  to  lay  its  sewers  and  drains  in 
any  public  street  or  road  of  the  county,  and  for  this  purpose  to  enter  upon 
the  same  and  make  all  necessary  and  proper  excavations,  restoring  the 
same  to  proper  condition,  but  in  case  such  street  or  road  shall  be  in  an 
incorporated  city  or  town,  the  consent  of  the  lawful  authorities  thereof 
shall  first  be  obtained  ;  to  make  and  enforce  all  necessary  and  proper  reg- 
ulations for  the  removal  of  garbage  and  the  cleanliness  of  the  roads  and 
streets  of  the  district,  and  for  the  purpose  of  guarding  against  the  spread 
of  contagious  and  infectious  diseases,  and  for  the  isolation  of  persons  and 
houses  affected  with  such  diseases,  and  for  the  notification  of  the  other 
inhabitants  of  the  existence  thereof,  and  all  other  sanitary  regulations 
not  in  conflict  with  the  constitution  and  laws  of  the  state;  to  impose  fines, 
penalties  and  forfeitures  for  any  and  all  violations  of  its  regulations  and 
orders,  and  to  fix  the  penalty  thereof  by  fine  or  imprisonment,  or  both ; 
but  no  such  fine  shall  exceed  the  sum  of  one  hundred  dollars,  and  no  such 
imprisonment  shall  exceed  one  month ;  to  call,  hold,  and  conduct  all 
elections  necessary  or  proper  after  the  formation  of  the  district;  to  pre- 
scribe, by  order,  the  time,  mode  and  manner  of  assessing,  levying,  and 
collecting  taxes  for  sanitary  purposes,  except  as  is  otherwise  provided 
herein;  to  compel  all  residents  and  property  owners  within  the  district  to 
connect  their  houses  and  habitations  with  the  street  sewers  and  drains; 
and  generally  to  do  and  perform  any  and  all  acts  necessary  or  proper  to 
the  complete  exercise  and  effect  of  any  of  its  powers,  or  the  purpose  for 
which  it  was  formed. 

SECTION  (>.  The  officers  of  the  district  shall  be  a  sanitary  assessor  and 
five  members  of  the  sanitary  board. 

SECTION  7.  There  shall  be  an  election  for  sanitary  assessor  on  every 
even  numbered  year  in  which  members  of  the  sanitary  board  are  elected, 
and  at  the  same  time,  place  and  manner;  and  the  person  then  elected 
shall  hold  office  for  two  years  next  thereafter,  and  until  the  election  and 
qualification  of  his  successor.  The  person  elected  assessor  at  the  election 
at  which  the  district  was  formed  shall  hold  office  until  the  election  and 
qualification  of  his  successor;  provided,  that  if  at  any  time  a  vacancy 
occur  in  the  office  of  assessor,  the  sanitary  board  shall  appoint  a  suitable 
person  to  fill  such  vacancy  until  the  next  election  at  which  an  assessor 
may  be  elected  under  the  provisions  of  this  act. 

SECTION  8.  It  shall  be  the  duty  of  the  sanitary  assessor  to  make  out, 
before  the  first  Monday  in  July  of  each  year,  a  list  of  all  the  tangible, 
real  and  personal  property  within  the  district.  Such  list  shall  contain  a 
brief  and  general  description  of  the  property,  an  assessment  of  the  value 
thereof,  the  name  or  names  ot  the  owner  or  owners,  and  such  other  mat- 
ters as  may  be  ordered  by  the  sanitary  board  and  such  matters  as  shall 
be  necessary  to  make  such  list  conform  to  the  provisions  ot  tne  general 
laws  of  the  state  of  California.  The  land  shall  be  assessed  separately  from 
the  improvements  thereon.  No  mistake  in  the  name  of  the  owner  of  any 
of  the  real  or  personal  property  assessed,  or  any  informality  in  the 
description,  or  in  other  parts  of  the  assessment,  shall  invalidate  the  same 


302  STREET    WORK    LAW SANITARY    DISTRICT    ACT 

The  sanitary  assessor  shall  verify  said  list  by  his  oath  before  some  officer 
authorized  to  administer  oaths,  and  shall  deposit  the  same  with  the  san- 
itary board  on  the  first  Monday  of  July  of  each  year,  or  as  soon  thereafter 
as  is  practicable.  He  shall  have  power  to  administer  all  oaths  and 
affirmations  necessary  or  proper  in  the  performance  of  his  duty  as  asses- 
sor, and  shall  receive  such  compensation  as  shall  be  fixed  by  the  order  of 
the  board.  He  shall  also  perform  such  further  duties  and  do  such  further 
acts  as  may  be  ordered  or  required  by  the  sanitary  board. 

SECTION  9.  There  shall  be  an  election  for  two  members  of  the  sanitary 
board  in  every  even  numbered  year,  beginning  with  the  second  even  num- 
bered year  after  the  election  at  which  the  district  was  organized,  and  the 
two  members  then  to  be  elected  shall  hold  office  until  the  election  and 
qualification  of  their  successors  in  the  next  even  numbered  year;  and  there 
shall  be  an  election  for  three  members  of  the  sanitary  board  in  every  odd 
numbered  year,  beginning  with  the  second  odd  numbered  year  after  the 
election  at  which  the  district  was  organized,  and  the  three  members  then 
to  be  elected  shall  hold  office  until  the  election  and  qualification  of  their 
successors  in  the  next  odd  numbered  year.  The  five  members  elected  at 
the  election  at  which  the  district  was  organized  shall,  at  their  first  meeting, 
or  as  soon  thereafter  as  may  be  practicable,  so  classify  themselves,  by  lot, 
that  two  of  them  shall  go  out  of  office  in  the  second  even  numbered  year 
after  the  election  at  which  the  district  was  organized,  and  upon  the  election 
and  qualification  of  their  successors,  as  provided  by  this  act,  and  three  of 
them  in  the  second  odd  numbered  year  after  the  election  at  which  the  dis- 
trict was  organized,  and  upon  the  election  and  qualification  of  their  suc- 
cessors, as  provided  by  this  act.  All  elections  for  officers  after  the  forma- 
tion of  the  district  shall  be  on  the  first  Monday  after  the  first  Tuesday  in 
the  month  of  March.  The  members  of  the  sanitary  board  shall  receive  no 
compensation  whatever,  either  for  general  or  special  services. 

SECTION  10.  The  sanitary  board  shall  be  the  governing  power  of  the 
district,  and  shall  exercise  all  the  powers  thereof,  except  the  making  of  an 
assessment  list  in  the  first  instance,  as. herein  provided.  At  its  first  meet- 
ing, or  as  soon  thereafter  as  may  be  practicable,  the  board  shall  choose  one 
of  its  members  as  president  and  another  of  its  members  as  secretary.  And 
all  contracts,  deeds,  wrarrants,  releases,  receipts  and  documents  of  every 
kind  shall  be  signed  in  the  name  of  the  district  by  its  president,  and  shall 
be  countersigned  by  its  secretary.  The  board  shall  hold  such  meetings, 
either  in  the  day  or  in  the  evening,  as  may  be  convenient.  In  case  of  the 
absence  or  inability  to  act,  of  the  president  or  secretary,  the  board  shall,  by 
order  entered  upon  the  minutes,  choose  a  president,  pro  tern.,  or  secretary, 
pro  tern.,  or  both,  as  the  case  may  be. 

SECTION  11.  The  sanitary  board  shall  sit  as  a  board  of  equalization  as 
soon  as  it  receives  the  asssessor's  list,  or  as  soon  thereafter  as  practicable, 
and  shall  continue  in  session  as  such  board,  with  convenient  intermissions, 
until  the  entire  list  furnished  by  the  assessor  shall  have  been  examined 
and  rectified,  if  rectification  be  necessary.  The  board  shall  have  power  to 
hear  complaints  as  to  the  proceedings  of  the  assessor,  and  to  adjudicate 
and  determine  the  controversy  thereon,  and  may  of  its  own  motion  raise 
an  assessment,  after  such  reasonable  notice  to  the  party  whose  assessment 
is  to  be  raised  as  may  be  ordered  by  the  board.  After  the  examination 


BOARD    PROVIDED    BY    ACT  llSch 3?  lie? A<* **       303 

and  rectification  of  the  assessor's  list  shall  have  been  completed,  the  board 
shall,  by  resolution,  fix  the  rate  of  taxation  for  sanitary  purposes, designat- 
ing the  number  of  cents  on  each  one  hundred  dollars  to  he  levied  for  each 
fiui.i,  and  shall  designate  the  fund  into  which  the  same  shall  be  paid;  but 
no  more  than  fifteen  cents  on  each  one  hundred  dollars  shall  be  levied  for 
all  the  sanitary  purposes  of  any  one  year,  besides  what  shall  be  required 
for  the  i  ayment  of  the  principal  and  interest  of  such  year  upon  outstand- 
ing IHHH  la.  After  the  entry  in  the  minutes  of  the  resolution  fixing  the  rate 
of  taxation,  the  sanitary  board  shall  cause  the  assessor  to  compute  the 
amount  of  the  tax  upon  each  piece  of  real  and  personal  property  and  enfer 
the  same  upon  the  assessment  list  in  a  suitable  place.  The  list,  when  so 
completed,  shall  be  verified  by  the  assessor  and  signed  by  the  president 
and  secretary;  and  the  amount  of  the  tax  shall  thereupon  become  alien 
upon  the  property  upon  which  it  is  assessed,  and  shall  have  the  effect  of  a 
judgment  against  the  person  of  the  owner  thereof,  and  every  such  lien  shall 
have  the  force  and  effect  of  an  execution  duly  levied  against  all  the  prop- 
erty of  the  delinquent;  and  the  judgment  shall  not  be  deemed  satisfied  or 
the  lien. extinguished  until  the  taxes  are  paid  or  the  property  sold  to  satisfy 
the  same,  and  no  statute  of  limitation  shall  apply;  but  no  more  then  sev- 
enty-five thousand  dollars  of  bonds  shall  be  voted  for  or  issued  at  any  one 
time,  nor  shall  the  bonded  indebtedness  of  the  district  ever  exceed  the  sum 
of  seventy-five  thousand  dollars  at  any  one  period,  whether  it  be  made  up 
of  one  issue  of  bonds  or  of  several  periods. 

SKCTEON  12.  On  or  before  the  first  Monday  in  July  of  each  year,  the 
board  shall  transmit,  or  cause  the  assessor  to  transmit,  a  duplicate  of  the 
list  so  made  to  the  tax  collector  of  the  county,  who  shall  collect  the  taxes 
shown  by  said  list  to  be  due,  in  the  same  manner  as  he  collects  the  county 
taxes,  and  all  the  provisions  of  the  laws  of  the  state  as  to  the  collection  of 
taxes  ami  delinquent  taxes,  and  the  enforcement  of  the  payment  thereof, 
so  far  as  applicable,  shall  apply  to  the  collection  of  taxes  for  sanitary  pur- 
poses; and  said  tax  collector,  and  the  sureties  on  his  official  bond,  shall  be 
responsible  for  the  due  performance  of  the  duties  imposed  upon  him  by 
this  act;  provided,  that  the  sanitary  board  may, in  its  discretion, direct  the 
district  attorney  of  the  county  to  commence  and  prosecute  suits  for  the 
collection  of  the  whole  or  any  portion  of  the  delinquent  taxes;  and  it  shall 
be  the  duty  of  the  district  attorney  to  carry  out  such  directions  of  the  san- 
itary board,  and  he,  and  the  sureties  upon  his  official  bond,  shall  be 
responsible  for  the  due  performance  of  the  duty  imposed  upon  him  by  this 
act;  and  provided  further,  that  the  sanitary  board  may,  at  any  time,  by 
order  entered  in  its  minutes,  provide  a  system  for  the  collection  of  delin- 
quent taxes,  or  make  any  change  in  the  manner  of  their  collection,  which 
as  to  such  taxes  shall  have  the  force  of  law.  All  money  collected  for  sani- 
tary purposes  by  the  district  attorney  under  this  act  shall  be  at  once  paid 
to  the  county  treasurer. 

SECTION  13.  The  tax  collector  shall  pay  over  to  the  county  treasurer  all 
moneys  collected  by  him  for  sanitary  purposes,  as  fast  as  the  same  shall  be 
collected,  and  the  said  treasurer  shall  keep  the  same  in  the  county  treasury 
as  follows  :  In  a  fund  called  the  bond  fund  for  sanitary  district  (naming  it) 
he  shall  place  and  keep  the  moneys  levied  by  the  sanitary  board  for  such 
fund ;  and  no  part  of  the  money  in  this  fund  shall  be  transferred  to  any 
other  fund, or  be  used  for  any  other  purpose  than  the  payment  of  the  prin- 


304  STREET    WORK    LAW SANITARY    DISTRICT    ACT 

cipal  and  interest  of  I, he  bonds  of  the  sanitary  district,  so  long  as  any  such 
bonds  shall  be  unpaid ;  in  a  fund  called  the  running  expense  of  sanitary 
district  (naming  it)  he  shall  place  ard  keep  the  moneys  levied  by  the  san- 
itary board  for  such  fund.  The  whole  or  any  part  of  the  money  in  the 
running  expense  fund  may  be  transferred  to  the  bond  fund,  or  to  the  other 
fund  hereinafter  provided  for,  upon  the  order  of  the  sanitary  board,  and  it 
shall  be  the  duty  of  the  treasurer  to  comply  with  such  order.  The  treas- 
urer shall  pay  out  moneys  from  either  of  said  funds,  or  from  the  fund  here- 
inafter mentioned,  only  upon  the  written  order  of  the  sanitary  board,  signed 
by  the  president  and  countersigned  by  the  secretary,  which  order  shall 
specify  the  name  of  the  person  to  whom  the  money  is  to  be  paid  and  the 
fund  from  which  it  is  to  be  paid,  and  shall  state  generally  the  purpose  for 
which  the  payment  is  made,  and  such  order  shall  be  entered  in  the  min- 
utes of  the  sanitary  board.  The  treasurer  shall  keep  the  order  as  his 
voucher,  and  shall  keep  a  specific  account  of  his  receipts  and  disbursements 
of  money  for  sanitary  purposes.  The  treasurer  and  sureties  upon  his  offi- 
cial bond  shall  be  liable  for  the  due  performance  of  the  duties  imposed 
upon  him  by  this  act.  The  treasurer  shall  keep  the  money  arising  from 
the  sale  of  bonds  in  the  fund  hereinafter  mentioned. 

SECTION  14.  At  any  time  after  the  district  is  organized,  the  sanitary 
board  may,  by  order  entered  in  the  minutes,  call  an  election  for  the  pur- 
pose of  determining  whether  bonds  shall  be  issued  for  the  construction  of 
sewers.  Such  order  shall  fix  the  day  of  the  election,  and  shall  specify  the 
amount  of  money  to  be  raised,  and  shall  state  in  general  terms  the  purpose 
for  which  it  is  to  be  raised.  A  copy  of  such  order  shall  be  posted  for  four 
successive  weeks  prior  to  the  election  in  at  least  three  public  places  within 
the  district,  and  shall  be  published  for  four  successive  weeks  prior  to  the 
election,  in  some  newspaper  published  within  the  district,  if  there  be  one, 
and  if  not,  in  some  newspaper  published  in  the  county.  It  shall  be  suffi- 
cient if  the  order  be  published  once  a  week. 

^SECTION  15.  At  any  time  prior  to  the  day  fixed  for  the  election,  the 
board  shall  select  one,  and  may  select  two,  polling  places  within  the  district, 
appoint  officers  of  election,  and  make  all  necessary  and  proper  arrange- 
ments for  holding  the  election,  The  tickets  shall  contain  the  words,  "For 
the  issuance  of  bonds  as  proposed  by  the  sanitary  board,"  or  "Against  the 
issuance  of  bonds  as  proposed  by  the  sanitary  board."  The  election 
shall  be  conducted  in  accordance  with  the  general  election  laws  of  the  state, 
so  far  as  the  same  shall  be  applicable,  except  as  herein  otherwise  provided. 
Every  qualified  elector,  resident  within  the  district  for  the  length  of  time 
necessary  to  enable  him  to  vote  at  a  general  election,  shall  be  entitled  to 
vote  at  the  election  above  provided  for.  After  the  votes  shall  have  been 
announced,  the  ballots  shall  be  sealed  up  and  delivered  to  the  secretary  or 
president  of  the  sanitary  board,  which  shall,  as  soon  as  practicable,  proceed 
to  canvass  the  same,  and  shall  enter  the  result  upon  its  minutes.  Such  • 
entry  shall  be  conclusive  evidence  of  the  fact  and  regularity  of  all  prior  pro- 
ceedings of  every  kind  and  nature  provided  bv  this  act  or  bylaw,  and  of  the 
facts  stated  in  such  entry.  If,  at  such  election,  two-thirds  of  the  votes  cast 
be  in  favor  of  the  issuance  of  bonds  as  proposed  by  the  sanitary  board,  the 
said  board  shall  thenceforth  have  full  power  and  authority  to  issue  and 
dispose  of  bonds  as  proposed  in  the  order  calling  the  election. 


BONDS    OF    THK    DISTRICT— LEVY  &&*&?*  Act  **       305 

SECTION  16.  Such  bonds  shall  be  in  sums  of  one  thousand  dollars 
each,  payable  in  gold  coin  of  the  United  States,  and  shall  bear  interest  at 
the  rate  of  five  per  cent,  per  annum,  payable  semi-annually,  at  dates  to  be 
fixed  by  the  board,  and  specified,  respectively,  in  the  bonds  and  coupons, 
payable  in  like  gold  coin.  Tiie  principal  of  each  bond  shall  be  payable  in 
installments  of  one  twentieth  of  the  face  of  the  bond,  and  one  of  such 
installments  shall  fall  due  at  the  end  of  each  year,  so  that  the  whole  prin- 
cipal shall  be  paid  in  twenty  years  from  the  issuance  of  the  bond.  Each 
bond  shall  refer  to  this  art  by  its  title  and  the  date  of  its  approval  by  the 
governor,  and  shall  be  payable  to  bearer;  but  every  person  into  whose 
hands  any  bond  or  coupon  shall  come  shall  be  deemed  to  have  notice  of 
any  and  all  payments  that  have  actually  been  made  thereon.  Each  bond 
shall  be  signed  by  the  president  and  countersigned  by  the  secretary  of  the 
sanitary  board.  The  bonds  shall  be  numbered  consecutively  beginning 
with  the  number  one.  Each  coupon  shall  refer  to  its  bond  by  number,  and 
shall  be  signed  by  the  president  and  countersigned  by  the  secretary.  No 
bond  shall  be  redeemed  before  it  is  due  without  the  consent  of  the  holder 
thereof,  nor  shall  the  rate  of  interest  on  any  bond  be  reduced  or  the  bonds 
be  refunded  without  the  consent  of  the  holder  thereof.  When  any  pay- 
ment of  any  installment  of  interest  is  made,  the  coupon  therefor  is  directed 
to  be  surrendered  to  the  county  treasurer  and  to  be  canceled  by  him ;  and 
when  any  installment  of  principal  is  paid,  such  payment  is  directed  to  be 
indorsed  upon  the  bond  by  such  treasurer;  and  when  the  whole  princi- 
pal of  any  bond  is  paid,  the  bond  is  directed  to  be  surrendered  to  the 
treasurer  and  to  be  by  him  canceled.  The  bonds  must  be  disposed  of  by 
the  sanitary  board  in  such  manner  and  in  such  quantities  as  may  be  deter- 
mined by  said  board,  in  its  discretion,  but  no  bond  must  be  disposed  of  for 
less  than  its  face  value.  The  proceeds  of  such  sales  shall  be  deposited 
with  the  county  treasurer,  and  shall  be  by  him  placed  in  a  fund  to  be 

called  the  sewer  construction  fund  of  sanitary   district   (naming  it). 

The  money  in  such  fund  shall  be  used  for  the  purpose  indicated  in  the 
order  calling  the  election  upon  the  question  of  the  issuance  of  the  bonds, 
ami  for  no  other  purpose;  provided,  that  if  after  such  purposes  are  entirely 
fulfilled,  any  balance  remain  in  such  fund,  such  balance  may,  upon  the 
order  of  the  sanitary  board,  be  transferred  to  either  of  the  other  funds 
provided  by  this  act.  If  the  result  of  the  election  be  against  the  issuance 
of  bonds,  no  other  election  upon  the  question  shall  be  called  or  held  for 
the  period  of  one  year. 

SECTION  17.  It  is  hereby  made  the  duty  of  the  sanitary  board  to  levy, 
each  year,  upon  the  property  within  the  district,  a  sufficient  tax  to  pay 
off  the  interest  accruing  upon  said  bonds  for  the  respective  year,  as  it  falls 
due,  and  also  to  pay  one  twentieth  of  the  principal  of  said  bonds,  so  that 
the  entire  amount  of  principal  and  interest  of  said  bonds  shall  be  paid 
within  twenty  years  from  the  date  of  the  issuance  of  said  bonds;  and  it  is 
hereby  made  the  duty  of  the  tax  collector,  or  such  other  person  as  may  be 
charged  with  the  duty  of  collecting  the  sanitary  taxes,  to  collect  the  said 
taxes  so  to  be  levied,  and  the  duty  of  the  sanitary  board  to  order  the  same 
to  be  paid,  in  manner  and  form  as  provided  by  this  act,  and  the  duty  of 
the  county  treasurer  to  pay  the  same.  If,  for  any  reason,  any  portion  of 
the  tax  for  any  year  remains  unpaid,  and  in  consequence  thereof  any  por- 
tion of  the  interest  or  principal  due  for  any  year  remains  unpaid,  the  same 


306  STREET  WORK  LAW SANITARY    DISTRICT    ACT 

shall  be  added  to  the  levy  for  the  next  year,  and  be  collected  and  paid 
accordingly.  The  payment  of  the  whole  amount  of  the  principal  and 
interest  of  all  of  said  bonds,  within  twenty  years  from  their  issuance,  is 
hereby  made  the  imperative  duty  of  the  district;  and,  if  necessary  for  that 
purpose,  a  special  tax  shall  be  levied;  and  it  is  hereby  made  the  duty 
of  every  officer  and  board  to  do  his  respective  part  towards  the 
levy,  collection,  and  payment  of  such  tax;  and  mandamus  shall  issue 
from  the  Superior  Court  of  the  county  in  which  the  district  is  situated,  or 
from  any  other  competent  court,  upon  application  of  any  party  interested, 
for  the  purpose  of  compelling  the  performance  of  the  duty  imposed  by  this 
act  upon  any  and  all  officers  or  boards. 

SECTION  18.  If  the  result  of  any  election  upon  the  question  of  the  issu- 
ance of  bonds  be  in  favor  of  such  issuance,  the  sanitary  board  may,  in 
their  discretion,  before  such  issuance,  commence  in  the  Superior  Court  oi 
the  count},  a  special  proceeding  to  determine  their  right  to  issue  such 
bonds  and  the  validity  thereof,  similar  to  the  proceeding  in  relation  to  irri- 
gation bonds,  provided  for  by  an  act  entitled  "An  act  supplemental  to  an 
act  entitled  'An  act  to  provide  for  the  organization  and  government  of  irri- 
gation districts,  and  to  provide  for  the  acquisition  of  water  and  other  prop- 
erty, and  for  the  distribution  of  water  thereby  for  irrigation  purposes/ 
approved  March  seventh,  eighteen  hundred  and  eighty-seven,  and  to  pro- 
vide for  the  examination,  approval  and  confirmation  of  proceedings  for  the 
issue  and  sale  of  bonds  issued  under  the  provisions  of  said  act;"  and  all 
the  provisions  of  said  act  shall  apply  to  and  govern  the  proceedings  so  to 
be  commenced  by  the  sanitary  board,  so  far  as  the  same  are  applicable; 
and  said  proceedings  shall  be  in  accordance  with  the  provisions  of  said  act, 
so  far  as  the  same  are  applicable,  and  the  judgment  in  such  proceedings 
shall  have  the  same  effect  as  a  judgment  in  relation  to  irrigation  bonds 
under  the  provisions  of  said  act. 

SECTION  19.  Any  general  regulation  of  the  sanitary  board  shall  be  by 
order  entered  in  the  minutes,  but  such  order  shall  be  published  once  a 
week  for  one  week  in  some  newspaper  published  within  the  district,  if 
there  be  one,  and  if  there  be  no  such  newspaper,  then  such  order  shall  be 
posted  for  one  week  in  three  public  places  within  the  district.  A  subsequent 
order  of  the  board  that  such  publication  or  posting  has  been  duly  made 
shall  be  conclusive  evidence  that  such  publication  or  posting  has  been 
properly  made.  Orders  not  establishing  a  general  regulation  need  not  be 
published  or  posted  (unless  otherwise  provided  by  this  act),  but  shall  be 
entered  in  the  minutes,  and  the  entry  shall  be  signed  by  the  secretary  of 
the  board.  A  general  regulation  shall  take  effect  immediately  upon  the 
expiration  of  the  week  of  publication  or  posting  thereof.  An  ordinary 
order  shall  take  effect  upon  the  entry  in  the  minutes. 

SECTION  20.  The  board  may  instruct  the  district  attorney  of  the  county 
to  commence  and  prosecute  any  and  all  actions  and  proceedings  necessary 
or  proper  to  enforce  any  of  its  regulations  or  orders,  and  may  call  upon 
said  district  attorney  for  advice  as  to  any  sanitary  subject;  and  it  shall  be 
the  duty  of  the  district  attorney  to  obey  such  instructions  and  to  give 
advice  when  called  on  by  the  board  therefor.  The  board  may  at  any 
time  employ  special  counsel  for  any  purpose.  All  fines  for  the  violation  of 
any  regulation  or  order  of  the  sanitary  board  shall,  after  the  expenses  of 
the  prosecution  are  paid  therefrom,  be  paid  to  the  secretary  of  the  board, 

• 


DISSOLUTION    OF    DISTRICT ASSESSMENTS      £0^1° llu*  ACt °f    307 

who  shall  forthwith  deposit  the  same^with  the  county  treasurer,  who  shall 
place  the  same  in  the  running  expense  fund  of  the  district. 

SECTION  21.  The  district  may  at  any  time  be  dissolved  upon  the  vote  of 
two-thirds  of  the  qualified  electors  thereof,  upon  an  election  called  by  the 
sanitary  board  upon  the  question  ot'  dissolution.  Such  election  shall  be 
called  and  conducted  in  the  same  manner  as  other  elections  of  the  district. 
Upon  such  dissolution,  the  property  of  the  district  shall  vest  in  any  incor- 
porated city  or  town  that  may  at  said  time  be  in  occupation  of  a  consider- 
able portion  of  the  territory  of  the  district,  and  if  there  be  no  such  incor- 
porated city  or  town,  then  the  property  shall  be  vested  in  the  board  of 
supervisors  of  the  county  until  the  formation  of  such  a  city  or  town ;  pro- 
vided, however,  that  if  at  the  time  of  such  election  to  dissolve  such  district, 
there  be  any  outstanding  bonded  indebtedness  of  such  district,  then,  in  such 
event,  the  vote  to  dissolve  such  district  shall  dissolve  the  same  for  all  pur- 
poses excepting  only  the  levy  and  collection  of  taxes  for  the  payment  of 
such  indebtedness.  And  from  the  time  such  district  is  thus  dissolved, 
until  such  bonded  indebtedness,  with  the  interest  thereon,  is  fully  paid, 
satisfied,  and  discharged,  the  legislative  authority  of  said  incorporated  city 
or  town,  or  the  board  of  supervisors,  if  there  be  no  such  incorporated  city 
or  town,  is  hereby  constituted  ex-officio  the  sanitary  board  of  such  district. 
And  it  is  hereby  made  obligatory  upon  such  board  to  levy  such  taxes,  and 
perform  such  other  acts  as  may  be  necessary  in  order  to  raise  money  for 
the  payment  of  such  indebtedness,  and  the  interest  thereon,  as  herein  pro- 
vided. 

SECTION  22.  The  sanitary  board  shall  have  power  at  any  time  after  main 
sewers,  or  other  sewers  are  laid,  to  order  and  contract  for  the  construction 
of  a  sewer  in  any  street  of  the  district  where  a  sewrer  is  not  already  con- 
structed, and  to  provide  by  such  order  that  the  cost  thereof  shall  be  borne 
by  the  property  fronting  along  the  line  of  the  sewer  so  ordered ;  and  in 
case  such  order  is  made,  the  said  cost  shall  be  assessed  on  the  lots  and 
lands  fronting  on  such  sewer,  according  to  the  provisions  of  the  general 
law  of  the  state  in  relation  to  street  improvements  in  incorporated  cities 
or  towns,  in  force  at  the  time  such  assessment  is  made,  so  far  as  the 
same  shall  be  applicable;  and  the  lien  of  the  assessment  so  made  shall  be 
enforced  by  action  to  be  brought  by  the  district  attorney  of  the  county,  in 
the  name  of  the  sanitary  district ;  provided,  that  nothing  in  this  section 
contained  shall  be  construed  to  take  away  or  impair  the  power  of  the  board 
to  provide  that  the  expenses  of  the  sewers  above  provided  for  shall  be 
borne  by  the  whole  district,  as  in  other  cases. 

SECTION  23.  All  acts  and  parts  of  acts  in  conflict  with  this  act,  or  any 
portion  thereof,  are  hereby  repealed. 

SECTION  24.    This  act  shall  take  effect  immediately. 


*SI:CTIOX  15  was  amended  to  read  as  above  by  an  act  approved  March  9,  1893,  statutes  1893, 
page  88. 


'Municipal  Indebtedness  /fct. 


A  n  act  authorizing  the  incurring  of  indebtedness  by  cities,  towns, 
a,nd  municipal  corporations,  incorporated  under  the  laws  of 
this  state',  for  the  construction  of  water-works,  sewers,  and  all 
necessary  public  improvements,  or  for  any  purpose  whatever, 
and  to  repeal  the  act  approved  March  9,  1885,  entitled  an  act 
to  authorize  municipal  corporations  of  the  fifth  class,  contain- 
ing more  than  three  thousand  and  less  than  ten  thousand 
inhabitants,  to  obtain  water-ivorks:  also  to  repeal  an  act 
approved  March  15,  1887,  entitled  an  act  authorizing  the 
incurring  of  indebtedness  by  cities,  towns,  and  municipal 
corporations,  incorporated  under  Ihe  laws  of  this  state. 

[Approved  March  19,  1889.    Statutes  1889,  p.  H99.] 

The  people  of  the  state  of  California,  represented  in  senate  and  assembly 
do  enact  as  follows  : 

SECTION  1.  Any  city,  town,  or  municipal  corporation,  incorporated  under 
the  laws  of  this  state,  may,  as  hereinafter  provided,  incur  indebtedness  to 
pay  the  cost  of  any  municipal  improvement,  or  for  any  purpose  whatever 
requiring  an  expenditure  greater  than  the  amount  allowed  for  such 
improvement  by  the  annual  tax  levy.  [Statutes  1889,  p.  399.} 

An  act  approved  March  15,  1887,  [statutes  1887,  p.  120] 
seems  to  have  been  the  first  general  act  passed  since  the 
adoption  of  the  new  constitution,  authorizing  all  municipal 
corporations,  incorporated  under  the  laws  of  this  state,  to 
incur  indebtedness  to  pay  the  cost  of  any  permanent  munici- 
pal improvement  requiring  an  expenditure  greater  than  the 
amount  allowed  for  such  improvements  by  the  ordinary 
annual  tax  levy,  and  to  issue  the  bonds  of  the  municipality 
therefor.  This  act  of  1887  was  repealed  by  section  12  of 
the  above  act  of  March  19,  1889,  and  the  latter  act,  as 
amended  in  1891  and  1893,  is  the  act  now  in  force  authoriz- 
ing the  incurring  of  such  indebtedness. 

The  legislature,  by  an  act  approved  March  9,  18Sr>, 
[statutes  1885.  p.  42]  authorized  municipal  corporations  of 
the  fifth  class,  to  incur  an  indebtedness  and  issue  bonds,  to 
supply  such  city  with  public  water- works.  Then  followed 
said  general  act  of  March  15,  1887.  By  an  act  approved 
February  16,  1889,  section  4  of  said  act  "of  March  15,  1887, 


MUNICIPAL    INDEBTEDNESS    ACT  5fii°SJWbS' 

was  amended.  [Statutes  1889,  p.  14.]  Then  followed  the  act 
which,  as  amended  is  the  act  now  in  force, — the  act  of 
March  1<),  1S89,— section  12  of  which  expressly  repeals  the 
said  act  of  March  9,  1885,  entitled  "An  act  'to  authorize 
municipal  corporations  of  the  fifth  cLiss,  etc.,  to  obtain 
public  water-works;"  likewise,  repeals  the  said  act  approved 
March  15,  1887,  entitled  "An  act  authorizing  the  incurring 
of  indebtedness  by  cities,  towns,  and  municipal  corpora- 
tions, incorporated  under  the  laws  of  this  state;"  and  also 
repeals  "all  general  acts,  or  special  acts,  or  parts  of  acts," 
conflicting  with  said  act  of  March  19,  1889.  By  an  act 
approved  March  11,  1891,  [statutes  1891,  p.  94]  section  2  of 
the  act  of  March  19,  1S89,  was  amended.  By  another  act 
approved  March  11,  1891,  [statutes  1891,  p.  84 1  section  5  of 
the  act  of  March  19,  1889,  was  amended.  By  a n'act  approved 
March  19,  1891,  [statutes  1891,  p,  132]  sections  9  and  10  of 
the  act  of  March  19,  1889,  were  amended.  By  an  act 
approved  March  1,  1893,  [statutes  1893,  p.  61]  sections  6 
and  8  of  the  act  of  March  19,  1889,  were  amended. 

This  act  of  March  19,  1889,  authorizes  the  incurring  of 
such  indebtedness  by  a  municipality,  exceeding  in  any 
year  the  income  and  revenue  provided  for  it  for  such  year, 
in  the  mode  prescribed  and  required  by  section  18  of  article 
XI  of  the  constitution.  The  act  authorizes  the  incurring 
of  indebtedness  by  municipalities  and  the  issuance  of 
municipal  bonds  upon  which  the  municipal  corporation  is 
directly  liable.  On  the  other  hand  the  street  improvement 
bond  act, — the  act  of  February  27,  1893,  [statutes  1893,  p. 
33,  supra  p.  217  et  seq.~]  provides,  not  for  the  issuance  of 
municipal  bonds,  (the  municipality  is  expressly  excepted 
from  all  liability,)  but  for  the  issuance  of  bonds,  secured  by 
the  property  which  has  been  assessed  to  pay  the  expenses  of 
this  work,  each  bond  representing  upon  each  lot  or  parcel 
of  land  upon  the  assessment  list,  the  total  amount  of  the 
assessment  against  such  particular  lot  or  parcel  of  land,  as 
shown  on  such  assessment  list  The  remedy  of  thebond  holder, 
holding  bonds  issued  under  the  municipal  indebtedness  act 
of  March  19,  1889,  authorizing  the  incurring  of  indebted- 
ness by  municipal  corporations,  is  against  the  municipality 
itself,  and  its  property.  The  remedy  of  the  bond  holder,  hold- 
ing a  bond  issued  under  the  said  street  improvement  bond 
act, — the  act  of  February  27,  1893, — is  against  the  partic- 
ular lot  or  parcel  of  land  upon  which  his  bond  is  a  lien. 
The  assessment  upon  said  lot  or  parcel  of  land  is 
represented  by  his  bond. 

Section  18  of  article  XI  of  the  constitution  was  amended 
at  the  general  election  held  in  1892, ,&e$£&  ahtirffo^  city 


STREET    WORK    LAW MUNICIPAL    INDEBTEDNESS    ACT 

or  town,  etc.,  to  incur  an  indebtedness,  the  maturity  of 
which  shall  not  exceed  forty  years  from  the  time  of  con- 
tracting the  same.  Prior  to  this  amendment  the  section 
limited  the  maturity  of  the  indebtedness  to  twenty  years 
from  the  time  of  contracting  the  same.  Accordingly,  sec- 
tions 6  and  8  of  this  act  of  March  19,  1889,  were  amended 
in  18(.)3,  [statutes  1893,  p.  fil]  so  as  to  make  provision  for 
the  issuance  of  forty  year  bonds. 

SECTION  2.  Whenever  the  legislative  branch  of  any  city,  town,  or 
municipal  corporation  shall,  by  ordinance  passed  by  a  vote  of  two-thirds  of 
all  its  members,  and  approved  by  the  executive  of  said  city,  town,  or 
municipal  corporation,  determine  that  the  public  interest  or  necessity 
demands  the  acquisition,  construction,  or  completion  of  any  municipal 
buildings,  bridges,  water-works,  water  rights,  sewers,  or  other  municipal 
improvements,  the  cost  of  which  will  be  too  great  to  be  paid  out  of  the 
ordinary  annual  income  and  revenue  of  the  municipality,  they  may,  after 
the  publication  of  such  ordinance  for  at  least  two  weeks  in  some  newspaper 
published  in  such  municipality,  and  at  their  next  regular  meeting  after 
such  publication,  or  at  an  adjourned  meeting,  by  ordinance  passed  by  a 
vote  of  two-thirds  of  all  its  members,  and  also  approved  by  the  said  execu- 
tive, call  a  special  election  and  submit  to  the  qualified  voters  of  said  city, 
town,  or  municipal  corporation,  the  proposition  for  the  purpose  set  forth 
in  the  ordinance,  and  no  question  other  than  the  incurring  of  indebtedness 
for  said  purpose  shall  be  submitted.  The  ordinance  calling  such  special 
election  shall  recite  the  objects  and  purposes  for  which  the  indebtedness  is 
proposed  to  be  incurred,  the  estimated  cost  of  the  proposed  public  improve- 
ment, the  necessity  for  such  improvement,  and  that  the  bonds  of  the 
municipality  shall  issue  for  the  payment  of  the  cost  of  such  improvement, 
as  in  such  ordinance  set  forth,  if  the  proposition  be  accepted  by  the 
qualified  voters,  as  hereinafter  provided,  and  shall  fix  the  day  on  which 
such  special  election  shall  be  held,  the  manner  of  holding  such  election, 
and  the  voting  for  or  against  incurring  such  indebtedness ;  such  election 
shall  be  held  as  provided  by  law  for  holding  such  election  in  such  city, 
town,  or  municipal  corporation;  provided,  however,  that  where  by  the 
terms  or  provisions  of  the  charter  of  any  city,  town  or  municipal  corpo- 
ration, the  cost  of  making  the  proposed  improvements  is  to  be  or  must  be 
paid  from  a  special  fund  created  by  such  charter  for  that  purpose,  the 
proposition  of  incurring  such  an  indebtedness  may  be  submitted  to  the 
qualified  voters  at  any  general  election  for  officers  of  the  state  of  California 
or  of  such  city,  town,  or  municipal  corporation.  [Statutes  1891,  p.  94. j 

SECTION  3.  Such  ordinance  shall  be  published  once  a  day,  for  at  least 
ten  days,  or  once  a  week  for  two  weeks  before  the  publication  of  the  notice 
of  the  special  election,  in  some  newspaper  published  in  such  municipality. 
After  said  publication  said  legislative  body  shall  cause  to  be  published,  for 
not  less  than  two  weeks,  in  at  least  one  of  the  newspapers  published  in 
such  municipality,  a  notice  of  such  special  election,  the  purpose  for  which 
tne  indebtedness  is  to  be  incurred,  the  number  and  character  of  the  bonds 
to  be  issued,  the  rate  of  .nterest  to  be  paid,  and  the  amount  of  tax  levy 
to  be  made  for  the  payment  thereof.  It  shall  require  the  votes  of  two- 
thirds  of  all  the  voters  voting  at  such  special  election  to  authorize  the 
issuance  of  the  bonds  herein  provided.  [Statutes  1SS9,  p.  400.] 


BONDS TAX    LEVY  Pecs.  3  to  8  of  Act  of       011 

March  ii>,  11:89.  Oil 

SECTION  4.  It  shall  be  the  duty  of  the  legislative  branch  of  any  munici- 
pality contemplating  permanent  public  improvements,  to  first  have  plans 
and  estimates  of  the  costs  of  such  improvements  made  by  a  competent 
engineer  or  architect,  who  lias  had  successful  experience  in  such  work, 
before  the  question  of  incurring  an  indebtedness  for  such  improvement 
is  submitted  to  vote.  [Statutes  1889,  p.  400.] 

SECTION  5.  No  city,  town,  or  municipal  corporation  shall  incur  an 
indebtedness  for  public  improvements  which  shall,  in  the  aggregate, 
exceed  fifteen  per  cent,  of  the  assessed  value  of  all  the  taxable  real 
estate  and  personal  property  of  such  city,  town,  or  municipal  corporation. 
[Statutes  1891,  p.  84.] 

SECTION  6.  All  municipal  bonds  for  public  improvements  issued  under 
the  provisions  of  this  act  shall  be  of  the  character  of  bonds  known  as 
serials,  and  shall  be  payable  in  gold  coin  or  lawful  money  of  the  United 
States,  in  the  manner  following:  One  fortieth  part  of  the  whole  amount 
of  indebtedness  shall  be  paid  each  and  every  year,  on  a  day  and  at  a 
place  to  be  nxed  by  the  legislative  branch  of  the  municipality  issuing  the 
bonds,  to-ether  with  tne  interest  on  all  sums  unpaid  at  such  date.  The 
bonds  shall  be  issued  in  such  denominations  as  the  legislative  branch  of 
the  municicality  may  determine,  except  that  no  bonds  shall  be  of  a  less 
denomination  than  one  hundred  dollars,  nor  of  a  greater  denomination 
than  one  thousand  dollars  each,  payable  on  the  day  and  at  the  place  fixed 
in  such  bond,  and  with  interest  at  the  rate  specified  in  the  bond,  which 
rate  shall  not  be  in  excess  of  the  legal  rate  of  the  state  of  California,  and 
may  be  payable  annually  or  semi-annually.  Such  bonds  may  be  issued 
and  sold  by  the  legislative  branch  of  the  city,  town,  or  municipal  corpo- 
ration, as  they  may  determine,  at  not  less  than  their  face  value,  in  gold 
coin  of  the  United  States,  and  the  proceeds  of  such  sale  shall  be  placed 
in  the  municipal  treasury  to  the  credit  of  the  proper  improvement  fund, 
and  shall  be  applied  exclusively  to  the  purposes  and  objects  mentioned  in 
the  ordinance,  until  such  objects  are  fully  accomplished,  after  which,  if 
any  surplus  remains,  such  surplus  shall  be  transferred  to  the  general 
fund  of  such  municipality.  [Statutes  1893,  p.  61.} 

SUCTION  7.  The  legislative  branch  of  any  city,  town,  or  municipal  corpo- 
poration,  issuing  bonds  under  authority  of  this  act,  shall  have  the  right  to 
determine  the  rate  of  interest  such  bonds  shall  bear;  provided,  that  in  no 
cast-  shall  it  exceed  seven  per  cent,  per  annum,  and  to  name  the  date  and 
place  where  such  bonds  and  interest  shall  be  paid;  pro  vided,  that  the  place 
of  payment  shall  be  either  at  the  office  of  the  treasurer  of  the  municipality, 
or  at  some  designated  bank  in  San  Francisco,  Chicago,  New  York,  or 
Boston.  The  said  bonds  shall  be  signed  by  the  executive  of  the  munici- 
pality, and  also  by  the  treasurer  thereof,  and  shall  be  countersigned  by  the 
clerk.  The  coupons  of  said  bonds  shall  be  numbered  consecutively  and 
signed  by  the  treasurer.  [Statutes  1889,  p.  401.] 

SECTION  8.  The  legislative  branch  of  said  city,  town,  or  municipal  corpo- 
ration shall,  at  the  time  of  fixing  the  general  tax  levy,  and  in  the  manner 
for  such  general  tax  levy  provided,  levy  and  collect  annually,  each  year, 
for  the  term  of  forty  years,  a  tax  sufficient  to  pay  the  annual  interest 
on  such  bonds,  and  also  one-fortieth  part  of  the  aggregate  amount  of  such 
indebtedness  so  incurred.  The  taxes  herein  required  to  be  levied  arid 
collected  shall  be  in  addition  to  all  other  taxes  levied  for  municipal  pur- 


312       STREET    WORK    LAW MUNICIPAL    INDEBTEDNESS    ACT 

poses,  and  shall  be  collected  at  the  same  time  and  in  the  same  manner  as 
other  municipal  taxes  are  collected.  [Statutes  1893,  p.  61.} 

SECTION  0.  It  shall  be  the  duty  of  the  legislative  branch  of  every  city, 
town,  or  municipal  corporation,  wherein  public  improvements  are  being 
made  under  the-provisions  of  this  act,  to  make  all  needful  rules  and  regula- 
tions for  carrying  out  and  maintaining  such  improvements;  to  appoint  all 
needful  agents,  superintendents,  and  engineers  to  properly  look  after  the 
construction  and  operation  of  such  public  works,  and  in  all  lawful  ways  to 
protect  and  preserve  the  rights  and  interests  of  the  municipality  ;  provided, 
however,  that  in  cities,  towns,  or  municipalities  operating  under  a  charter 
heretofore  or  hereafter  framed  under  section  eight  of  article  eleven  of  the 
constitution,  and  having  a  board  of  public  works,  all  the  matters  and 
things  required  in  this  section  to  be  done  and  performed  by  the  legislative 
branch  of  the  municipality  shall  be  done  and  performed  by  the  board  of 
public  works  of  such  city,  town,  or  municipality.  [Statutes  1891,  p.  132. \ 

SECTION  10.  All  contracts  for  the  construction  or  completion  of  any 
public  works  or  improvements,  or  for  furnishing  labor  or  materials  there- 
for, as  herein  provided,  shall  be  let  to  the  lowest  responsible  bidder.  The 
legislative  branch  of  the  municipality  shall  advertise,  for  at  least  ten  days, 
in  one  or  more  newspapers  published  in  the  municipality,  inviting  sealed 
proposals  for  furnishing  the  labor  and  materials  for  the  proposed  improve- 
ments, before  any  contract  shall  be  made  therefor.  The  said  legislative 
branch  shall  have  the  right  to  require  such  bonds  as  they  may  deem  best 
from  the  successful  bidder,  to  insure  the  faithful  performance  of  the  con- 
tract work.  They  shall  also  have  the  right  to  reject  any  or  all  bids; 
provided,  however,  that  in  cities,  towns,  or  municipalities  operating  under 
a  charter  heretofore  or  hereafter  framed  under  section  eight  of  article 
eleven  of  the  constitution,  and  having  a  board  of  public  works,  all  the 
matters  and  things  required  in  this  section  to  be  done  and  performed  by 
the  legislative  branch  of  the  municipality  shall  be  done  and  performed  by 
the  board  of  public  works  of  such  city,  town,  or  municipality.  [Statutes 
1891,  p.  132.} 

SECTION  11.  Whenever  the  legislative  branch  of  any  municipality  shall 
by  resolution  deem  it  necessary,  they  may  require  the  treasurer  of  such 
municipality  to  give  additional  bonds  for  the  safe  custody  and  care  of  the 
public  funds.  [Statutes  1889,  p.  402.} 

SECTION  12.  The  act  approved  March  ninth,  eighteen  hundred  and 
eighty-five,  entitled  an  act  to  authorize  municipal  corporations  of  the  fifth 
class,  containing  more  than  three  thousand  and  less  than  ten  thousand 
inhabitants,  to  obtain  public  water-works,  and  the  act  approved  March 
fifteen,  eighteen  hundred  and  eighty-seven,  entitled  an  act  authorizing  the 
incurring  of  indebtedness  by  cities,  towns,  and  municipal  corporations, 
incorporated  under  the  laws  of  this  state,  and  all  general  acts,  or  special  acts, 
or  parts  of  acts,  conflicting  with  this  act,  are  hereby  repealed.  [Statutes 
1889,  p.  402.} 

SECTION  13.  This  act  shall  take  effect  and  be  in  force  from  and  after  its 
passage.  ]Statutes  1889,  p.  402.} 


OF  THE 

UNIVERSITY 


Street  Work  /fct  of  March  18th,  1886 

AS  AMENDED  BY 

SUBSEQUENT  AMENDATORY  AND  SUPPLEMENTARY    ACTS  UP 
TO  AND   INCLUDING  ACTS  OF   1893. 


An  Act  to  provide  for  work  upon  streets,  lanes,  alleys,  courts, 
places  and  sidewalks  t  and  for  the  construction  of  sewers 
within  municipalities. 

[Approved  March  18, 1885.] 

PART   I. 

SECTION  1.  All  streets,  lanes,  alleys,  places,  or  courts,  in  the  muni- 
cipalities of  this  state  now  open  or  dedicated,  or  which  may  hereafter 
be  opened  or  dedicated  to  public  use,  shall  be  deemed  and  held  to  be  open 
public  streets,  lanes,  alleys,  places,  or  courts,  for  the  purposes  of  this  act, 
and  the  city  council  of  each  municipality  is  hereby  empowered  to  establish 
and  change  the  grades  of  said  streets,  lanes,  alleys,  places,  or  courts,  and 
fix  the  width  thereof,  and  is  hereby  invested  with  jurisdiction  to  order  to 
be  done  thereon  any  of  the  work  mentioned  in  section  two  of  this  act, 
under  the  proceedings  hereinafter  described.  [Statutes  1885,  page  147.] 

Section  1  of  the  act  of  March  18,  1885,  has  never  been  altered  or 
IOD  ended.] 

SECTION'  2.  Whenever  the  public  interest  or  convenience  may  require,  the 
city  council  is  hereby  authorized  and  empowered  to  order  the  whole,  or  any 
port  ion,  either  in  length  or  width,  of  the  streets,  avenues,  lanes,  alleys,  courts, 
or  places  of  any  such  city  graded  or  re-graded  to  the  official  grade,  planked 
or  re-planked,  paved  or  re-paved,  macadamized  or  re-macadamized,  grav- 
eled, or  re-graveled,  piled  or  re-piled,  capped  or  re-capped,  sewered  or 
re-sewered,  and  to  order  sidewalks,  manholes,  culverts,  cesspools,  gutters, 
tunnels,  curbing,  and  cross-walks  to  be  constructed  therein,  or  to  order  break- 
waters, levees,  or  walls  of  rock,  or  other  material  to  protect  the  same  from 
overflow  or  injury,  and  to  order  any  other  work  to  be  done  which  shall  be 
necessary  to  complete  the  whole  or  any  portion  of  said  streets,  avenues, 
sidewalks,  lanes,  alleys,  courts,  or  places,  and  it  may  order  any  of  the  said 
work  to  be  improved ;  and  also  to  order  a  sewer  or  sewers,  with  outlets,  for 
drainage  or  sanitary  purposes,  in,  over  or  through  any  rightof  way  granted 
or  obtained  for  such  purpose;  provided,  that  whenever  the  grade  of  a  street, 
avenue,  lane,  alley,  court,  or  place  shall  hereafter  be  changed,  the  petition 
of  the  owners  of  a  majority  of  the  feet  fronting  thereon,  asking  for  grading 
the  same  to  the  new  grade,  shall  be  a  condition  precedent  to  the  ordering 
of  such  grading  to  be  done.  [Amendment,  approved  March  11,  1893,  Stat- 
utes 1893,  page  178.] 

[Section  2  was  amended  1889,  by  act  of  March  14,  1889,  statutes  1889, 
page  157;  again  in  1891,  by  act  of  March  31,  1891.  statutes  1891,  page  196; 
and  again  in  1893,  by  act  of  March  11,  1893,  statutes!893,  page  172. J 


'2a     STREET  WORK  LAW — STREET  IMPROVEMENT  ACT 


SECTION  3.     Before  ordering  any  work  done  or  improvement  made,  which 
is  authorized  by  section  two  of  this  act,  the  city  council  shall  pass  a  resolu- 
tion of  intention  so  to  do,  and  describing  the  work,  which  shall  be  posted 
conspicuously  for  two  days  on  or  near  the  chamber  door  of  said  council, 
and  published  by    two  insertions  in  one  or  more  daily,  semi-weekly,  or 
weekly  newpapers  published  and  circulated  in  said  city,  and  designated  by 
said  council  for  that  purpose.    The  street  superintendent  shall  thereupon 
cause  to  be  conspicuously  posted  along  the  line  of  said  contemplated  work 
or  improvement,  at  not  more  than  one  hundred  feet  in  distance  apart, 
but  not  less  than  three  in  all,  or  when  the  work  to  be  done  is  only  upon 
an  entire  crossing  or  any  part  thereof,  in  front  of  each  quarter  block  and 
irregular  block  liable  to  be  assessed,  notices  of  the  passage  of  said  resolu- 
tion.    Said  notice  shall  be  headed  "Notice  of  Street  Work,"  in  letters  of 
not  less  than  one  inch  in  length,  and  shall,  in  legible  characters,  state  the 
fact  of  the  passage  of  the  resolution,  its  date,   and  briefly  the    work 
or  improvement  proposed,  and  refer  to  the  resolution  for  further  particu- 
lars.   He  shall  also  cause  a  notice,  similar  in  substance,  to  be  published 
for  six  days,  in  one  or  more  daily  newspapers  published  and  circulated  in 
said  city,  and  designated  by  said  city  council,  or  in  cities  where  there  is  no 
daily  newspaper,  by  one  insertion  in  a  semi-weekly  or  weekly  newspaper 
so  published,  circulated,  and  designated.     In  case  there  is  no  such  paper 
published  in  said  city,  said  notice  shall   be  posted   for  six  days  on  or  near 
the  chamber  door  of  said  council  and  in  two  other  conspicuous  places  in 
said  city,  as  hereinafter  provided.    The  owners  of  a  majority  of  the  front- 
age of  the  property  fronting  on  said  proposed  work  or  improvement,  where 
the  same  is  for  one  block,  or   more,  may   make  a  written  objection  to  the 
same  within  ten  days   after  the  expiration  of  the  time   of  the   publica- 
tion  and  posting  of  said  notice,  which  objection  shall  be  delivered  to  the 
clerk  of  the  city  council,  who  shall  indorse  thereon  the  date  of  its  reception  by 
him,  and  such  objections  so  delivered  and  indorsed  shall  be  a  bar  for  six 
months  to  any  further  proceedings  in  relation  to  the  doing  of  said  work, 
or  making  said  improvements  unless  the  owners  of  the  one-half  or  more 
of  the  frontage,  as  aforesaid,  shall  meanwhile  petition  for  the  same  to  be 
done.    At  any  time  before  the  issuance  of  the  assessment  roll,  all  owners 
of  lots  or  lands  liable  to  assessment  therein,  who,  after  the  first  public  a- 
tion  of  said  resolution  of  intention,  may  feel  aggrieved,  or  who  may  have 
objections  to  any  of  the  subsequent  proceedings  of  said  council  in  relation 
to  the  performance  of  the  work  mentioned  in  said  notice  of  intention, 
shall  file  with  the  clerk  a  petition  of  remonstrance,  wherein  they   shall 
state  in  what  respect  they  feel  aggrieved,  or  the  proceedings  to  which  they 
object;  such  petition  or  remonstrance   shall  be   passed  upon  by  the  said 
city  council,  and  its  decision  therein  shall  be  final  and  conclusive.     But 
when  the  work  or  improvement  proposed  to  be  done  is  the  construction  of 
sewers,  man  holes!,  culverts,  or  cesspools,   crosswalks  or  sidewalks,  and 
curbs,  and  the  objection  thereto  is  signed  by  the  owners  of  a  majority  of 
the  frontage  liable  to  be  assessed  for  the  expense  of  said  work,  as  afore- 
said, the  said  city  council  shall,  at  its  next  meeting,  fix  a  time  for  hearing 
said  objections,  not  less  than  one  week  thereafter.     The  city  clerk  shall 


SECTION  THREE  Sec.  3,  as  amended       on 

Mar.  81,  185)1. 

'hereupon  notify  the  persons  making  such  objections,  by  depositing  a 
notice  thereof  in  the  postoffice  of  said  city,  postage  prepaid,  addressed  to  eac."i 
objector,  or  his  agent,  when  he  appears  for  such  objector:  At  the  timo 
specified  said  city  council  shall  hear  the  objections  urged,  and  pass  upon 
the  same,  and  its  decisions  shall  be  final  and  conclusive,  and  the  said  bar 
for  six  months  to  any  further  proceedings  shall  not  be  applicable  thereto. 
And  when  not  more  than  two  blocks,  including  street  crossings,  remain 
ungraded  to  the  official  grade,  or  otherwise  unimproved,  in  whole  or  in 
part,  and  a  block  or  more  on  each  side  upon  said  street  has  been  so  graded 
or  otherwise  improved,  or  when  not  more  than  two  blocks  at  the  end  oe 
a  street  remain  so  ungraded  or  otherwise  unimproved,  said  city  council 
may  order  any  of  the  work  mentioned  in  this  act  to  be  done  upon  said 
intervening,  ungraded,  or  unimproved  part  of  said  street,  or  at  the  end  OT 
a  street,  and  said  work  upon  said  intervening  part,  or  at  the  end  of  A 
street,  shall  not  be  stayed  or  prevented  by  any  written  or  other  objection, 
unless  such  council  shall  deem  proper.  And  if  one-half  or  more  in  width 
or  in  length,  or  as  to  grading  one-half  or  more  of  the  grading  work  of  any 
street  lying  and  being  between  two  successive  main  street  crossings,  or 
if  a  crossing  has  been  already  partially  graded  or  improved,  as  aforesaid, 
said  council  may  order  the  remainder  improved,  graded,  or  otherwise,  not- 
withstanding such  objections  of  property  owners.  At  the  expiration  of 
twenty  days  after  the  expiration  of  the  time  of  said  publication  by  said 
street  superintendent,  and  at  the  expiration  of  twenty-five  days  after  the 
u  !\ertising  and  posting,  as  aforesaid,  of  any  resolution  of  intention,  if  no 
written  objection  to  the  work  therein  described  has  been  delivered,  iv; 
aforesaid,  by  the  owners  of  a  major  frontage  of  the  property  fronting  on 
said  proposed  work  or  improvement,  or  if  any  written  objection  purport- 
in-  to  be  signed  by  the  owners  of  a  major  frontage  is  disallowed  by  said 
council,  as  not  of  itself  barring  said  work  for  six  months,  because,  in  its 
judgment,  said  objection  has  not  been  legally  signed  by  the  owners  of  >t 
majority  of  said  frontage,  the  city  council  shall  be  deemed  to  have  acquired 
jurisdiction  to  order  any  of  the  work  to  be  done,  or  improvement  to  be 
made,  which  is  authorized  by  this  act;  which  order,  when  made,  shall  be 
published  for  two  days,  the  same  as  provided  for  the  publication  of  the 
resolution  of  intention.  Before  passing  any  resolution  for  the  construction 
of  said  improvements,  plans  and  specifications  and  careful  estimates  of  the 
costs  and  expenses  thereof  shall  be  furnished  to  said  city  council,  if 
required  by  it,  by  the  city  engineer  of  said  city;  and  for  the  work  of  con- 
structing sewers,  specifications  shall  always  be  furnished  by  him.  When- 
ever the  contemplated  work  of  improvement,  in  the  opinion  of  the  city 
council,  is  of  more  than  local  or  ordinary  public  benefit,  or  whenever, 
according  to  estimate  to  be  furnished  by  the  city  engineer,  the  total  esti- 
mated costs  and  expenses  thereof  would  exceed  one-half  the  total  assessed 
value  of  the  lots  and  lands  assessed,  if  assessed  upon  the  lots  or  land  front- 
ing upon  said  proposed  work  or  improvement,  according  to  the  valuation 
fixed  by  the  last  assessment  roll  whereon  it  was  assessed  for  taxes  for 
municipal  purposes,  and  allowing  a  reasonable  depth  from  such  frontage 
for  lots  or  lands  assessed  in  bulk,  the  city  council  may  make  the  expense 


, 

UNIVERSITY 


4a     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

of  such  work  or  improvement  chargeable  upon  a  district,  which  the  said 
city  council  shall  in  its  resolution  of  intention  declare  to  be  the  district 
benefited  by  said  work  or  improvement,  and  to  be  assessed  to  pay  the 
costs  and  expenses  thereof.  Objections  to  the  extent  of  the  district  of 
lands  to  be  affected  or  benefited  by  said  work  or  improvement,  and  to  be 
assessed  to  pay  the  costs  and  expenses  thereof,  may  be  made  by  interested 
parties,  in  writing,  within  ten  days  after  the  expiration  of  the  time  of  the 
publication  of  the  notice  of  the  passage  of  the  resolution  of  intention.  The 
city  clerk  shall  lay  said  objections  before  the  city  council,  which  shall,  at 
its  next  meeting,  fix  a  time  for  hearing  said  objections,  not  less  than  one 
week  thereafter.  The  city  clerk  shall  thereupon  notify  the  persons  mak- 
ing such  objections  by  depositing  a  notice  thereof  in  the  postoffice  of  said 
city,  postage  prepaid,  addressed  to  each  objector.  At  the  time  specified 
the  city  council  shall  hear  the  objections  urged,  and  pass  upon  the  same, 
and  its  decision  shall  be  final  and  conclusive.  If  the  objections  are  sus- 
tained, all  proceedings  shall  be  stopped  ;  but  proceedings  may  be  imme- 
diately again  commenced  by  giving  the  notice  of  intention  to  do  the  said 
work  or  make  said  improvements.  If  the  objections  are  overruled  by  the 
city  council,  the  proceedings  shall  continue  the  same  as  if  such  objections 
had  not  been  made.  [Amendment  approved  March  31,  1891.  Statutes  1891, 
page  192.} 

[Section  3  was  amended  in  1889  by  act  of  March  14,  1889,  Sta.  '83,  r>.  158; 
and  again  in  1891,  by  act  of  March  31,  1891,  Sta.  '91,  p.  196,] 

Section  4.  The  owners  of  a  majority  in  frontage  of  lots  and  lands  front- 
ing on  any  street,  avenue,  lane,  alley,  place  or  court,  or  of  lots  or  lands  lia- 
ble to  be  assessed  for  the  expense  of  the  work  petitioned  to  be  done,  or 
their  duly  authorized  agents,  may  petition  the  city  council  to  order  any  of 
the  work  mentioned  in  this  act  to  be  done,  and  the  city  council  may  order 
the  work  mentioned  in  said  petition  to  be  done,  after  notice  of  its  intention 
so  to  do  has  been  posted  and  published  as  provided  in  section  3  of  this  act. 
[Amendment  approved  March  31,  1891,  statutes  1891,  page  199.] 

[Section  4  was  amended  in  1889  by  act  of  March  14,  1889,  statutes  '89,  p. 
160;  and  again  in  1891  by  act  of  March  31,  1891,  statutes  '91,  p.  199.] 

SECTION  5.  Before  the  awarding  of  any  contract  by  the  city  council  for 
doing  any  work  authorized  by  this  act,  the  city  council  shall  cause  notice, 
with  specifications,  to  be  posted  conspicuously  for  five  days  on  or  near  the 
council  chamber  door  of  said  council,  inviting  sealed  proposals  or  bids  for 
doing  the  work  ordered,  and  shall  also  cause  notice  of  said  work  inviting 
said  proposals,  and  referring  to  the  specifications  posted  or  on  file,  to  be 
published  for  two  days  in  a  daily,  semi-weekly  ,or  weekly  newspaper  pub- 
lished and  circulated  in  said  city,  designated  by  the  council  for  that 
purpose,  and  in  case  there  is  no  newspaper  published  in  said  city,  then  it 
shall  only  be  posted  as  hereinbefore  provided.  All  proposals  or  bids 
offered  shall  be  accompanied  by  a  check  payable  to  the  order  of  the  mayor  of 
the  city,  certified  by  a  responsible  bank,  for  an  amount  which  shall  not  be 
less  than  ten  per  cent,  of  the  aggregate  of  the  proposal,  or  by  a  bond  for  the 
said  amount  and  so  payable,  signed  by  the  bidder  and  by  two  sureties, 


SECTION    FIVE 

who  shall  justify,  before  any  officer  competent  to  administer  an  oath,  in 
double  the  said  amount,  and  over  and  above  all  statutory  exemptions. 
Said  proposals  or  bids  shall  be  delivered  to  the  clerk  of  the  said  city 
council,  and  said  council  shall,  in  open  session,  examine  and  publicly 
declare  the  same ;  provided,  however,  that  no  proposal  or  bid  shall  be  con- 
sidered unless  accompanied  by  said  check  or  bond  satisfactory  to  the 
council.  The  city  council  may  reject  any  and  all  proposals  or  bids  should 
it  deem  this  for  the  public  good,  and  also  the  bid  of  any  party  who  has 
been  delinquent  and  unfaithful  in  any  former  contract  with  the  munici- 
pality, and  shall  reject  all  proposals  or  bids  other  than  the  lowest  regular 
proposal  or  bid  of  any  responsible  bidder,  and  may  award  the  contract  for 
said  work  or  improvement  to  the  lowest  responsible  bidder  at  the  prices 
named  in  his  bid,  which  award  shall  be  approved  by  the  mayor,  or  a  three- 
fourths  vote  of  the  city  council.  If  not  approved  by  him,  or  a  three-fourths 
vote  of  the  city  council,  without  further  proceedings,  the  city  council  may 
readvertise  for  proposals  or  bids  for  the  performance  of  the  work  as  in  the 
first  instance,  and  thereafter  proceed  in  the  manner  in  this  section  pro- 
vided, and  shall  thereupon  return  to  the  proper  parties  the  respective 
checks  snd  bonds  corresponding  to  the  bid  so  rejected.  But  the  checks 
accompanying  such  accepted  proposals  or  bids  shall  be  held  by  the  city 
clerk  of  said  city  until  the  contract  for  doing  said  work,  as  hereinafter 
provided,  has  been  entered  into,  either  by  said  lowest  bidder  or  by  the 
owners  of  three-fourths  part  of  the  frontage,  whereupon  said  certified 
check  shall  l>e  returned  to  said  bidder.  But  if  said  bidder  fails,  neglects, 
or  refuses  to  enter  into  the  contract  to  perform  said  work  or  improvement, 
as  hereinafter  provided,  then  the  certified  check  accompanying  his  bid  and 
the  amount  therein  mentioned,  shall  be  declared  to  be  forfeited  to  said 
city,  and  shall  be  collected  by  it,  and  paid  into  its  fund  for  repairs  of 
streets;  and  any  bond  forfeited  may  be  prosecuted,  and  the  amount  due 
thereon  collected  and  paid  into  said  fund.  Notice  of  such  awards  of 
contract  shall  be  posted  for  five  days,  in  the  same  manner  as  hereinbefore 
provided  for  the  posting  of  proposals  for  said  work,  and  shall  be  published  for 
two  days  in  a  daily  newspaper  published  and  circulated  in  said  city,  and  des- 
ignated by  said  city  council,  or  in  cities  where  there  is  no  daily  newspaper, 
by  one  insertion  in  a  semi-weekly  or  weekly  newspaper  so  published,  cir- 
culated and  designated ;  provided,  however,  that  in  case  there  is  no  news-  * 
paper  printed  or  published  in  any  such  city,  then  such  notice  of  award  J 
shall  only  be  kept  posted  as  hereinbefore  provided.  The  owners  of  three- 
fourths  of  the  frontage  of  lots  and  lands  upon  the  street  whereon  said  » 
work  is  to  be  done,  or  their  agents,  and  who  shall  make  oath  that  they  are 
such  owners  or  agents,  shall  not  be  required  to  present  sealed  pro- 
posals or  bids,  but  may,  within  ten  days  after  the  first  posting  and  publi- 
cation of  said  notice  of  said  award,  elect  to  take  said  work  and  enter  into 
a  written  contract  to  do  the  whole  work  at  the  price  at  which  the  same 
has  been  awarded.  Should  the  said  owners  fail  to  elect  to  take  said 
work,  and  to  enter  into  a  written  contract  therefor  within  ten  days,  or  to 
commence  the  work  within  fifteen  days  after  the  first  posting  and  publication 


6a     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

of  said  award,  and  to  prosecute  the  same  with  diligence  to  completion,  it 
shall  be  the  duty  of  the  superintendent  of  streets  to  enter  into  a  contract 
with  the  original  bidder  to  whom  the  contract  was  awarded,  and  at  the 
prices  specified  in  his  bid.  But  if  such  original  bidder  neglects,  fails  or 
refuses,  for  fifteen  days  after  the  first  posting  and  publication  of  the  notice 
of  award,  to  enter  into  the  contract,  then  the  city  council,  without  further 
proceedings,  shall  again  advertise  for  proposals  or  bids  as  in  the  first 
instance,  and  award  the  contract  for  the  said  work  to  the  then  lowest  regular 
bidder.  The  bids  of  all  persons  and  the  election  of  all  owners  as  aforesaid, 
who  have  failed  to  enter  into  the  contract  as  herein  provided,  shall  be 
rejected  in  any  bidding  or  election  subsequent  to  the  first  for  the  same 
work.  If  the  owner  or  contractor  who  may  have  taken  any  contract,  do 
not  complete  the  same  within  the  time  limited  in  thte  contract,  or  within 
such  further  time  as  the  city  council  may  give  them,  the  superintendent 
of  streets  shall  report  such  delinquency  to  the  city  council,  which  may 
relet  the  unfinished  portion  of  said  work,  after  pursuing  the  formalities 
prescribed  hereinbefore  for  the  letting  of  the  whole  in  the  first  instance. 
All  contractors,  contracting  owners  included,  shall,  at  the  time  of  execut- 
ing any  contract  for  street  work,  execute  a  bond  to  the  satisfaction  and 
approval  of  the  superintendent  of  streets  of  said  city,  with  two  or  more 
sureties  and  payable  to  such  city,  in  such  sums  as  the  mayor  shall  deem 
adequate,  conditioned  for  the  faithful  performance  of  the  contract;  and 
the  sureties  shall  justify  before  any  person  competent  to  administer  an 
oath,  in  double  the  amount  mentioned  in  said  bond,  over  and  above  all 
statutory  exemptions.  Before  being  entitled  to  a  contract,  the  bidder  to 
whom  the  award  was  made,  or  the  owners  who  have  elected  to  take  the 
contract,  must  advance  to  the  superintendent  of  streets,  for  payment  by 
him,  the  cost  of  publication  of  the  notices,  resolutions,  orders,  or  other 
incidental  expenses  and  matters  required  under  the  proceedings  prescribed 
in  this  act,  and  such  other  notices  as  may  be  deemed  requisite  by  the  city 
council.  And  in  case  the  work  is  abandoned  by  the  city  before  the  letting 
of  the  contract,  the  incidental  expenses  incurred  previous  to  such  aban- 
donment shall  be  paid  out  of  the  city  treasury.  [Amendment  ^pprvred 
March  31,  1891,  statutes  1891,  page  199.] 

[Section  5  was  amended  in  1889,  by  act  of  March  14,  1889,  statutes  1889, 
p.  160,  and  again  in  1891  by  act  of  March  31,  1891,  statutes,  1891,  p.  199.J 

SECTION  6.  The  superintendent  of  streets  is  hereby  authorized,  in  his 
official  capacity,  to  make  all  written  contracts,  and  receive  all  bonds 
authorized  by  this  act,  and  to  do  any  other  act,  either  express  or  implied, 
that  pertains  to  the  street  department  under  this  act;  and  he  shall  fix  the 
time  for  the  commencement,  which  shall  not  be  more  than  fifteen  days 
from  the  date  of  the  contract,  and  for  the  completion  of  the  work  under 
all  contracts  entered  into  by  him,  which  work  shall  be  prosecuted  with 
diligence  from  day  to  day  thereafter  to  completion,  and  he  may  extend 
the  time  so  fixed  from  time  to  time,  under  the  direction  of  the  city  coun- 
cil. The  work  provided  for  in  section  2  of  this  act,  must,  in  all  cases,  be 
done  under  the  direction  and  to  the  satisfaction  of  the  superintendent  of 


SECTION    SEVEN 

streets,  and  the  materials  used  shall  comply  with  the  specifications  and  be 
to  the  satisfaction  of  said  superintendent  of  streets,  and  all  contracts 
made  therefor  must  contain  a  provision  to  that  effect,  and  also  express 
notice,  that,  in  no  case,  except  where  it  is  otherwise  provided  in  this  act, 
will  the  city,  or  any  officer  thereof,  be  liable  for  any  portion  of  the 
expense,  nor  for  any  delinquency  of  persons  or  property  assessed.  The 
city  council  may,  by  ordinance,  prescribe  general  rules  directing  the 
superintendent  of  streets  and  the  contractor  as  to  the  materials  to  be 
used,  and  the  mode  of  executing  the  work,  under  all  contracts  thereafter 
made.  The  assessment  and  apportionment  of  the  expenses  of  all  such 
work  or  improvement  shall  be  made  by  the  ^superintendent  of  streets  in 
the  mode  herein  provided.  [Statutes  1885,  p.  151.] 

[Section  6  of  the  act  of  March  18,  1885,  never  has  been  amended.] 

SECTION  7.  Subdivision  One — The  expenses  incurred  for  any  work 
authori/ed  by  this  act  (which  expense  shall  not  include  the  cost  of  any 
work  done  in  such  portion  of  any  street  as  is  required  by  law  to  be  kept 
in  order  or  repair  by  any  person  or  company  having  railroad  tracks 
thereon,  nor  include  work  which  shall  have  been  declared  in  the  resolution 
of  intention  to  be  assessed  on  a  district  benefited)  shall  be  assessed  upon 
the  lots  and  lands  fronting  thereon,  except  as  hereinafter  specifically  pro- 
vided ;  each  lot  or  portion  of  a  lot  being  separately  assessed,  in  proportion 
to  the  front :>-v.  at  a  rate  per  front  foot  sufficient  to  cover  the  total  expense 
of  the  work. 

SulnliriNiini  Two— The  expense  of  all  improvements,  except  such  as  are 
done  by  contractors  under  the  provisions  of  section  thirteen  of  this  act, until 
the  streets,  avenues,  street  crossings,  lanes, alleys,  places,  or  courts  are  finally 
accepted,  as  provided  in  section  twenty  of  this  act,  shall  be  assessed  upon 
the  lots  and  lands  as  provided  in  this  section,  according  to  the  nature  and 
character  of  the  work;  and  after  su?h  acceptance  the  expense  of  all  the 
work  thereafter  done  thereon  shall  be  paid  by  said  city  out  of  the  street 
department  fund. 

Snhdi,  inion  Three— The  expense  of  the  work  done  on  main  street  cross- 
ings shall  be  assessed  at  a  uniform  rate  per  front  foot  of  the  quarter  blocks 
and  irregular  blocks  adjoining  and  cornering  upon  the  crossings,  and 
separately  upon  the  whole  of  each  lot  or  portion  of  a  lot  having  any 
frontage  in  the  said  blocks  fronting  on  said  main  streets,  half  way  to  the 
next  main  street  crossing,  and  all  the  way  on  said  blocks  to  a  boundary 
line  of  the  city  where  no  such  crossing  intervenes,  but  only  according  to 
its  in nitage  in  said  quarter  blocks  and  irregular  blocks. 

Kii'xlii-ixion  Four— Where  a  main  street  terminates  in  another  main 
street,  the  expenses  of  the  work  done  on  one-half  of  the  width  of  the 
street  opposite  the  termination  shall  be  assessed  upon  the  lots  in  each  of 
the  two  quarter  blocks  adjoining  and  cornering  on  the  same,  according  to 
the  frontage  of  such  lots  on  said  main  streets,  and  the  expense  of  the 
other  half  of  the  width  of  said  street  upon  the  lot  or  lots  fronting  on  the 
latter  half  of  the  street  at  such  termination. 

Subdinaion  Five— Where  any  alley  or  subdivision  street  crosses  a  main 


8a     STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

street,  the  expense  of  all  work  done  on  said  crossing  shall  be  assessed  on  all 
lots  or  portions  of  lots  half  way  on  said  alley  or  subdivision  street  to  the  next 
crossing  or  intersection,  or  to  the  end  of  such  alley  or  subdivision  street  if 
it  does  not  meet  another. 

Subdivision  Six — The  expense  of  work  done  on  alley  or  subdivision 
street  crossings  shall  be  assessed  upon  the  lots  fronting  upon  such  alley  or 
subdivision  btreets  on  each  side  thereof,  in  all  directions,  half  way  to  the 
next  street,  place,  or  court,  on  either  side,  respectively,  or  to  the  end  of 
such  alley  or  subdivision  street,  if  it  does  not  meet  another. 

Subdivision  Seven — Where  a  subdivision  street,  avenue,  lane,  alley, 
place,  or  court  terminates  in  another  street,  avenue,  lane,  alley,  place,  or 
court,  the  expense  of  the  work  done  on  one-half  of  the  width  of  the  sub- 
division street,  avenue,  lane,  alley,  place,  or  court  opposite  the  termina- 
tion, shall  be  assessed  upon  the  lot  or  lots  fronting  on  such  subdivision 
street,  or  avenue,  lane,  alley,  place  or  court  so  terminating,  according  to 
its  frontage  thereon,  half  way  on  each  side,  respectively,  to  the  next 
street,  avenue,  lane,  alley,  court  or  place,  or  to  the  end  of  such  street, 
avenue,  lane,  alley,  place  or  court,  if  it  does  not  meet  another,  and 
the  other  one-half  of  the  width  upon  the  lots  fronting  such  termination. 

Subdivision  Eight — Where  any  work  mentioned  in  this  act  (man-holes, 
cesspools,  culverts,  crosswalks,  piling  and  capping  excepted)  is  done  on 
either  or  both  sides  of  the  center  line  of  any  street  for  one  block  or  less, 
and  further  work  opposite  to  the  work  of  the  same  class  already  done  is 
ordered  to  be  done  to  complete  the  unimproved  portion  of  said  street,  the 
assessment  to  cover  the  total  expenses  of  said  work  so  ordered  shall  be 
made  upon  the  lots  or  portions  of  the  lots  only  fronting  the  portions  of 
the  work  so  ordered.  And  when  sewering  or  resewering  is  ordered  to  be 
done  under  the  sidewalk  on  only  one  side  of  a  street  for  any  length 
thereof,  the  assessment  for  its  expenses  shall  be  made  only  upon  the  lot? 
and  lands  fronting  nearest  upon  that  side,  and  for  intervening  intersections 
only  upon  the  two  quarter  blocks  adjoining  and  cornering  upon  that  side. 

Subdivision  Nine — Section  one  of  chapter  three  hundred  and  twenty-five 
of  the  laws  of  this  state  entitled  "An  act  amendatory  of  and  supple- 
mentary to  'An  act  to  provide  revenue  for  the  support  of  the  government 
of  this  state,' approved  April  twenty-ninth,  eighteen  hundred  and  fifty- 
seven,"  approved  April  nineteenth,  eighteen  hundred  and  fifty-nine, 
shall  not  be  applicable  to  the  provisions  of  this  section ;  but  the  property 
herein  mentioned  shall  be  subject  to  the  provisions  of  this  act,  and  be 
assessed  for  work  done  under  the  provisions  of  this  section. 

Subdivision  Ten — It  shall  be  lawful  for  the  owner  or  owners  of  lots  or 
lands  fronting  upon  any  street,  the  width  and  grade  of  which  have  been 
established  by  the  city  council,  to  perform  at  his  or  their  own  expense 
(after  obtaining  permission  from  the  council  so  to  do,  but  before  said 
council  has  passed  its  resolution  of  intention  to  order  grading  inclusive  of 
this)  any  grading  upon  said  street,  to  its  full  width,  or  to  the  center  line 
thereof,  and  to  its  grade  as  then  established,  and  thereupon  to  procure,  at 
his  or  their  own  expense,  a  certificate  from  the  city  engineer,  setting  forth 


SECTION    SEVEN  Marchl 

the  number  of  cubic  yards  of  cutting  and  filling  made  by  him  or  them  in 
said  grading,  and  the  proportions  performed  by  each  owner,  and  that  the 
same  is  done  to  the  established  width  and  grade  of  said  street,  or  to 
the  center  line  thereof,  and  thereafter  to  file  said  certificate  with  the  super- 
intendent of  streets,  which  certificate  the  superintendent  shall  record  in  a 
book  kept  for  that  purpose  in  his  office,  properly  indexed.  Whenever 
thereafter  the  city  council  orders  the  grading  of  said  street,  or  any  portion 
thereof,  on  which  any  grading  certified  as  aforesaid  has  been  done,  the 
bids  and  the  contract  must  express  the  price  by  the  cubic  yard  for  cutting 
and  filling  in  grading;  and  the  said  owner  or  owners,  and  his  or  their 
successors  in  interest,  shall  be  entitled  to  credit  on  the  assessment  upon  his 
or  their  lots  and  lands  fronting  on  said  street  for  the  grading  thereof,  to 
the  amount  of  the  cubic  yards  of  cutting  and  filling  set  forth  in  his  or 
their  said  certificate,  at  the  prices  named  in  the  contract  for  said  cutting 
and  filling;  or,  if  the  grade  meanwhile  has  been  duly  altered,  only  for  so 
much  of  said  cert i lied  work  as  would  be  required  for  grading  to  the 
altered  grade;  provided,  however,  that  such  owner  or  owners  shall  not  be 
entitled  to  such  credit  as  may  be  in  excess  of  the  assessments  for  grading 
upon  the  lots  and  lands  owned  by  him  or  them,  and  proportionately 
assessed  for  the  whole  of  said  grading ;  and  the  superintendent  of  streets 
shall  include  in  the  assessment  for  the  whole  of  said  grading  upon  the 
same  grade  the  number  of  cubic  yards  of  cutting  and  filling  set  forth  in 
any  and  all  certificates  so  recorded  in  his  office,  or  for  the  whole  of  said 
grading  to  the  duly  altered  grade  so  much  of  said  certified  work  as  would 
be  required  for  grading  thereto,  and  shall  enter  corresponding  credits, 
deducting  the  same  as  payments  upon  the  amounts  assessed  against  the 
lots  and  lands  owned,  respectively,  by  said  certified  owners  and  their  suc- 
cessors in  interest;  provided,  however,  that  he  shall  not  so  include  a'ny 
grading  quantities  or  credit  any  sums  in  excess  of  the  proportionate 
assessments  for  the  whole  of  the  grading  which  are  made  upoa  any  lots 
and  lands  fronting  upon  said  street  and  belonging  to  any  such  certified 
owners  or  their  successors  in  interest.  Whenever  any  owner  or  owners  of 
any  lots  and  lands  fronting  on  any  street  shall  have  heretofore  done,  or  shall 
hereafter  do,  any  work  (except  grading)  on  such  street,  in  front  of  any 
block,  at  his  or  their  own  expense,  and  the  city  council  shall  subsequently 
order  any  work  to  be  done  of  the  same  class  in  front  of  the  same  blook,  said 
work  so  done  at  the  expense  of  such  owner  or  owners  shall  be  excepted 
from  the  order  ordering  work  to  be  done,  as  provided  in  subdivision 
eleven  of  this  section  of  this  act;  provided,  that  the  work  so  done  at  the 
expanse  of  such  owner  or  owners  shall  be  upon  the  official  grade,  and  in 
condition  satisfactory  to  the  street  superintendent  at  the  time  said  order  is 
passed. 

Subdivision  Eleven— The  city  council  may  include  in  one  resolution  of 
intention  and  order  any  of  the  different  kinds  of  work  mentioned  in  this 
act,  and  it  may  except  therefrom  any  of  said  work  already  done  upon  the 
street  to  the  official  grade.  The  lots  and  portions  of  lots  fronting  upon 
said  excepted  work  already  done  shall  not  be  included  in  the  frontage 


10a    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

assessment  for  the  class  of  work  from  which  the  exception  is  made;  pro. 
vided,  that  this  shall  not  be  construed  so  as  to  affect  the  special  provisions 
as  to  grading  contained  in  subdivision  ten  of  this  section. 

Subdivision  Twelve — Whenever  the  resolution  of  intention  declares  that 
the  costs  and  expenses  of  the  work  and  improvement  are  to  be  assessed 
upon  a  district,  the  city  council  shall  direct  the  city  engineer  to  make  a 
diagram  of  the  property  affected  or  benefited  by  the  proposed  work  or 
improvement,  as  described  in  the  resolution  of  intention,  and  to  be 
assessed  to  pay  the  expenses  thereof.  Such  diagram  shall  show  each  sepa- 
rate lot,  piece,  or  parcel  of  land,  the  area  in  square  feet  of  each  of  such 
lots,  pieces,  or  parcels  of  land,  and  the  relative  location  of  the  same  to  the 
work  proposed  to  be  done,  all  within  the  limits  of  the  assessment  district; 
and  when  said  diagram  shall  have  been  approved  by  the  city  council,  the 
clerk  shall,  at  the  time  of  such  approval,  certify  the  fact  and  date  thereof. 
Immediately  thereafter  the  said  diagram  shall  be  delivered  to  the  super- 
intendent of  streets  of  said  city,  who  shall,  after  the  contractor  of  any  street 
work  has  fulfilled  his  contract  to  the  satisfaction  of  said  superintendent  of 
streets,  or  city  council,  on  appeal,  proceed  to  estimate  upon  the  lands, 
lots  or  portions  of  lots  within  said  assessment  district,  as  shown  by  said 
diagram,  the  benefits  arising  from  such  work,  and  to  be  received  by  each 
such  lot,  portion  of  such  lot,  piece,  or  subdivision  of  land,  and  shall 
thereupon  assess  upon  and  against  said  lands  in  said  assessment  district 
the  total  amount  of  the  costs  and  expenses  of  such  proposed  work,  and  in 
so  doing  shall  assess  said  total  sum  upon  the  several  pieces,  parcels,  lots, 
or  portions  of  lots,  and  subdivisions  of  land  in  said  district  benefited 
thereby,  to  wit:  Upon  each,  respectively,  in  propoition  to  the  estimated 
benefits  to  be  received  by  each  of  said  several  lots,  portions  of  lots,  or 
subdivisions  of  land.  In  other  respects  the  assessment  shall  be  as  pro- 
vided in  the  next  section,  and  the  provisions  of  subdivisions  three,  four 
five,  six,  seven,  and  eight  of  this  section  shall  not  be  applicable  to  the  work 
or  improvement  provided  for  in  this  subdivision.  [Amendment  approved 
March  31,  1891,  Statutes  1891,  p.  201.] 

[Section  7  was  amended  in  1889,  by  act  of  March  14,  1889,  statutes 
'89,  p.  163;  and  again  in  1891,  by  act  of  March  31,  1891,  statutes  '91,  p.  201.] 
SECTION  8.  After  the  contractor  of  any  street  work  has  fulfilled  his  con- 
tract to  the  satisfaction  of  the  street  superintendent  of  said  city,  or  city 
council  on  appeal,  the  street  superintendent  shall  make  an  assessment  td 
cover  the  sum  due  for  the  work  performed  and  specified  in  said  contract 
(including  any  incidental  expenses,)  in  conformity  with  the  provisions  of 
the  preceding  section  according  to  the  character  of  the  work  done ;  or,  if 
any  direction  and  decision  be  given  by  said  council  on  appeal,  then  in, 
conformity  with  such  direction  and  decision,  wh.ch  assessment  shall  briefly 
refer  to  the  contract,  the  work  contracted  for  and  performed,  and  shall 
show  the  amount  to  be  paid  therefor,  together  with  any  incidental 
expenses,  the  rate  per  front  foot  assessed,  if  the  assessment  be  made  pe^ 
front  foot,  the  amount  of  each  assessment,  the  name  of  the  owner  of  each; 
lot,  or  portion  of  a  lot  (if  known  to  the  street  superintendent) ;  if  unknown 
the  word  "unknown"  shall  be  written  opposite  the  number  of  the  lot,  and 


SECTION    NINE  Sec.  9  as  amended 

March  31,  1891. 

the  amount  assessed  thereon,  the  numbei  of  each  lot  or  portion  or  portions 
*sed,and  shall  have  attached  thereto  a  diagram  exhibiting 
each  street  or  street  crossing,  lane,  alley,  place,  or  court,  on  which  anv 
work  nas  been  done,  and  showing  the  relative  location  of  each  district  lot 
or  portion  of  lot  to  the  work  done,  numbered  to  correspend  with  the  num- 
bers in  the  assessments,  and  showing  the  number  of  feet  fronting,  or 
number  of  lots  assessed,  for  said  work  contracted  for  and  performed 
{Amendment  app,'un><l  March  14,  1889.  Statutes  1889,  p.  166.] 

SECTION  !>.  To  said  assessment  shall  be  attached  a  warrant,  which  shall 
}.«•  signed  by  the  superintendent  of  streets,  and  countersigned  by  the  mayor 
of  said  city.  The  said  warrant  shall  be  substantially  in  the  following  form  : 

FOKM    OF   THE    WARRANT. 

By  virtue  hereof,  I  (name  of  the  superintendent  cf  streets),  of  the  city 
— ,  county  of  -  -  (or  city  and  county  of  —  — ),  and  state  of  Cali- 
fornia, by  virtue  of  the  authority  vested  in  me  as  said  superintendent  of 
streets,  do  authori/e  and  empower  (name  of  contractor),  (his  or  their) 
agents  or  assigns,  to  demand  and  receive  the  several  assessments  upon 
the  assessment  and  diagram  hereto  attached,  and  this  shall  be  (his  or 
their)  warrant  for  the  same. 

(Ikite.)  — (name  of  superintendent  of  streets). 

Countersigned  by  (name  of  mayor). 

Said  warrant,  assessment  and  diagram,  together  with  the  certificate  of 
the  city  engineer,  shall  be  recorded  in  the  office  of  said  superintendent  of 
streets.  When  so  recorded  the  several  amounts  assessed  shall  be  a  lien 
upon  the  lamN,  lots,  or  portions  of  lots  assessed,  respectively,  for  the 
perio.lof  two  yars  from  thn  date  of  said  recording,  unless  sooner  dis- 
charged; and  from  and  after  the  date  of  said  recording  of  any  warrant, 
assessment,  diagram  and  certificate,  all  persons  mentioned  in  section 
eleven  of  this  act  shall  be  deemed  to  have  notice  of  the  cont  nts  of  the 
record  thereof.  After  said  warrant,  assessment,  diagram  and  certificate 
are  recorded  the  same  shall  be  delivered  to  the  contractor,  or  his 
agent  or  assigns,  on  demand,  but  not  until  after  the  payment  to  the  said 
superintendent  of  streets  of  the  incidental  expenses  not  previously  paid  by 
the  contractor,  or  his  assigns;  and  by  virtue  of  said  warrant  said  contractor, 
or  his  agent  or  assigns,  shall  be  authorized  to  demand  and  receive  the  amount 
of  the  several  assessments  made  to  cover  the  sum  due  for  the  work  speci- 
fied in  such  contracts  and  assessments.  Whenever  it  shall  appear  by  any 
final  judgment  of  any  court  of  this  state  that  any  suit  brought  to  fore- 
close the  lien  of  any  sum  of  money  assessed  to  cover  the  expense  of  said 
street  work  done  under  the  provisions  of  this  act  has  been  defeated  by 
reason  of  any  defect,  error,  informality,  omission,  irregularity  or  illegality 
in  any  assessment  hereafter  to  be  made  and  issued,  or  in  the  recording 
thereof,  or  in  the  return  thereof  made  to  or  recorded  by  said  superintend- 
ent of  streets,  any  person  interested  therein  may,  at  any  time  within  three 
months  after  the  entry  of  said  final  judgment,  apply  to  said  superintend- 
ent of  streets  who  issued  the  same,  or  to  any  superintendent  of  streets  in 
oilice  at  the  time  of  said  application,  for  another  assessment  to  be 


I2a    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

issued  in  conformity  to  law;  and  said  superintendent  shall,  within  fifteen 
days  after  the  date  of  said  application,  make  and  deliver  to  said  applicant 
a  new  assessment,  diagram  and  warrant  in  accordance  with  law;  and  the 
acting  mayor  shall  countersign  the  same  as  now  provided  by  law,  which 
assessment  shall  be  a  lien  for  the  period  of  two  years  from  the  date  of  said 
assessment,  and  be  enforced  as  provided  in  section  seven  of  this  act. 
[Amendment  approved  March  31,  1891,  statutes  1891,  page  205.} 

[Section  9  was  amended  in  1889,  by  act  of  March  14,  1889,  statutes  1889, 
page  167;  and  again  in  1891  by  act  of  March  31,  1891,  statutes  1891,  page 
205.] 

SECTION  10.  The  contractor,  or  his  assigns,  or  some  person  in  his  or  their 
behalf,  shall  call  upon  the  persons  assessed,  or  their  agents,  if  they  can 
conveniently  be  found,  and  demand  payment  of  the  amount  assessed  to 
each.  If  any  payment  be  made  the  contractor,  his  assigns,  or  some  person  in 
his  or- their  behalf,  shall  receipt  the  same  upon  the  assessment  in  presence 
of  the  person  making  such  payment,  and  shall  also  give  a  separate  receipt  if 
demanded.  Whenever  the  person  so  assessed  or  their  agents,  cannot  con- 
veniently be  found,  or  whenever  the  name  of  the  owner  of  the  lot  is  stated  as 
"unknown  "  on  the  assessment,  then  the  said  contractor,  or  his  assigns,  or 
some  person  in  his  or  their  behalf,  shall  publicly  demand  payment  on  the 
premises  assessed.  The  warrant  shall  be  returned  to  the  superintendent 
of  streets  within  thirty  days  after  its  date,  with  a  return  indorsed  thereon 
signed  by  the  contractor,  or  his  assigns,  or  some  person  in  his  or  their 
behalf,  verified  upon  oath,  stating  the  nature  and  character  of  the  demand, 
and  whether  any  of  the  assessments  remain  unpaid,  in  whole  or  in  part, 
and  the  amount  thereof.  Thereupon  the  superintendent  of  streets  shall 
record  the  return  so  made,  in  the  margin  of  the  record  of  the  warrant  and 
assessment,  and  also  the  original  contract  referred  to  therein,  if  it  has  not 
already  been  recorded  at  full  length  in  a  book  to  be  kept  for  that  purpose 
in  his  office,  and  shall  sign  the  record.  The  said  superintendent  of  streets 
is  authorized  at  any  time  to  receive  the  amount  due  upon  any  assessment 
list  and  warrant  issued  by  him,  and  give  a  good  and  sufficient  discharge 
therefor;  provided,  that  no  such  payment  so  made  after  suit  has  been 
commenced,  without  the  consent  of  the  plaintiff  in  the  action,  shall  operate 
as  a  complete  discharge  of  the  lien  until  the  costs  in  the  action  shall  be 
refunded  to  the  plaintiff;  and  he  may  release  any  assessment  upon  the 
books  of  his  office,  on  the  payment  to  him  of  the  amount  of  the  assessment 
against  any  lot  with  interest,  or  on  the  production  to  him  of  the  receipt  of 
the  party  or  his  assigns  to  whom  the  assessment  and  warrant  were  issued; 
and  if  any  contractor  shall  fail  to  return  his  warrant  within  the  time  and  in 
the  form  provided  in  this  section,  he  shall  thenceforth  have  no  lien  upon  the1 
property  assessed;  provided,  however,  that  in  case  any  warrant  is  lost,  upon 
proof  of  such  loss  a  duplicate  can  be  issued,  upon  which  a  return  may  be 
made,  writh  the  same  effect  as  if  the  original  had  been  so  returned.  After 
the  return  of  the  assessment  and  warrant  as  aforesaid,  all  amounts  remain- 
ing due  thereon  shall  draw  interest  at  the  rate  of  ten  per  cent,  per  annum 
until  paid.  [Statutes  1885,  p.  155]. 

Section  10  of  the  act  of  March  18,  1885,  never  has  been  amended. 


SECTIONS     TEN    TO    TWELVE  Sf8»Mi*"*U 

SECTION  11.  The  owners,  whether  named  in  the  assessment  or  not,  the 
contractor,  or  his  assigns,  and  all  other  persons  directly  interested  in  any 
work  provided  for  in  this  act,  or  in  the  assessment,  feeling  aggrieved  by 
any  act  or  determination  of  the  superintendent  of  streets  in  relation 
thereto,  or  who  claim  that  tne  work  has  not  been  performed  according  to 
the  contract  in  a  good  and  substantial  manner,  or  having  or  making  any 
objection  to  the  correctness  or  legality  of  the  assessment  or  other  act, 
determination,  or  proceedings  of  the  superintendent  of  streets,  shall, 
within  thirty  days  after  the  date  of  the  warrant,  appeal  to  the  city  council, 
as  provided  in  this  section,  by  briefly  stating  their  objections  in  writing, 
and  filing  the  same  with  the  clerk  of  said  city  council.  Notice  of  the  time 
and  place  of  the  hearing,  briefly  referring  to  the  work  contracted  to  be 
done,  or  other  subject  of  appeal,  and  to  the  acts,  determinations,  or  pro- 
ceedings objected  to  or  complained  of,  shall  be  published  for  five  days. 
Upon  such  appeal,  the  said  city  council  may  remedy  and  correct  any  error 
or  informality  in  the  proceedings,  and  revise  and  correct  any  of  the  acts 
or  determinations  of  the  superintendent  of  streets  relative  to  said  work ; 
may  confirm,  amend,  set  aside,  alter,  modify,  or  correct  the  assessment  in 
Much  manner  as  to  them  shall  seem  just,  and  require  the  work  to  be  completed 
according  to  the  .directions  of  the  city  council;  and  may  instruct  and 
direct  the  superintendent  of  streets  to  correct  the  warrant,  assessment,  or 
diagram  in  any  particular,  or  to  make  and  issue  a  new  warrant,  assessment 
and  diagram,  to  conform  to  the  decisions  of  said  city  council  in  relation 
thereto,  at  their  option.  All  the  decisions  and  determinations  of  said  city 
council,  upon  notice  and  hearing  as  aforesaid,  shall  be  final  and  conclusive 
upon  all  persons  entitled  to  appeal  under  the  provisions  of  this  section,  as 
to  all  errors,  informalities,  and  irregularities  which  said  city  council  might 
have  remedied  and  avoided ;  and  no  assessment  shall  be  held  invalid , 
except  upon  appeal  to  the  city  council,  as  provided  in  this  section,  for  any 
error,  informality,  or  other  defect  in  any  of  the  proceedings  prior  to  the 
assessment,  or  in  the  assessment  itseli,  where  notice  of  the  intention  of 
the  city  council  to  order  the  work  to  be  done,  for  which  the  assessment  is 
made,  has  been  actually  published  in  any  designated  newspaper  of  said 
city  for  the  length  of  time  prescribed  by  law,  before  the  passage  of  the 
resolution  ordering  the  work  to  be  done.  [Statutes  1885,  p.  156.] 

[Section  11  of  the  act  of  March  18,  1885,  never  has  been  amended.! 

SECTION  12.  At  any  time  after  the  period  of  thirty-five  days  from  the 
day  of  the  date  of  the  warrants,  as  herein  provided,  or  if  an  appeal  is 
taken  to  the  city  council,  as  provided  in  section  eleven  of  this  act,  at  any 
time  after  five  days  from  the  decision  of  said  council,  or  after  the  return 
of  the  warrant  or  assessment,  after  the  same  may  have  been  corrected, 
altered  or  modified,  as  provided  in  said  section  eleven  (but  not  less  than 
thirty-five  days  from  the  date  of  the  warrant),  the  contractor  or  his  assignee 
may  sue,  in  his  own  name,  the  owner  of  the  land,  lots  or  portions  of  lots, 
assessed  on  the  day  of  the  date  of  the  recording  of  the  warrant, 
assessment  and  diagram,  or  any  day  thereafter  during  the  con- 
tinuance of  the  lien  of  said  assessment,  and  recover  the  amount  of  any 
assessment  remaining  unpaid,  with  interest  thereon  at  the  rate  of  ten  per 


I4a    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

cent,  per  annum  until  paid.  And  in  all  cases  of  recovery  under  the  pro- 
visions of  this  act  the  plaintiff  shall  recover  the  sum  of  fifteen  dollars  in 
addition  to  the  taxable  cost,  as  attorney's  fees,  but  not  any  percentage 
upon  said  recovery.  And  when  suit  has  been  brought,  after  a  personal 
demand  has  been  made  and  a  refusal  to  pay  such  assessment  so  demanded, 
the  plaintiff  shall  also  be  entitled  to  have  and  recover  said  sum  of  fifteen 
dollars  as  attorney's  fees  in  addition  to  all  taxable  costs,  notwithstanding 
that  the  suit  may  be  settled  or  a  tender  may  be  made  before  a  recovery  in 
said  action,  and  he  may  have  judgment  therefor.  Suit  may  be  brought  in 
the  Superior  Court  within  whose  jurisdiction  the  city  is  in  which  said 
work  has  been  done,  and  in  case  any  of  the  assessments  are  made  against 
lots,  portions  of  lots,  or  lands,  the  owners  thereof  cannot,  with  due  dili- 
gence, be  found,  the  service  in  each  of  such  actions  may  be  had  in  such 
manner  as  is  prescribed  in  the  codes  and  laws  of  this  state.  The  said  war- 
rant, assessment,  certificate  and  diagram,  with  the  affidavit  of  demand 
and  non-payment,  shall  be  held  prima  facie  evidence  of  the  regularity  and 
correctness  of  the  assessment  and  of  the  prior  proceedings  and  acts  of  the 
superintendent  of  streets  and  city  council  upon  which  said  warrant, 
assessment  and  diagram  are  based,  and  like  evidence  of  the  right  of  the 
plaintiff  to  recover  in  the  action.  The  court  in  which  said  suit  shall  be 
commenced  shall  have  power  to  adjudge  and  decree  a  lien  against  the 
premises  assessed,  and  to  order  such  premises  to  be  sold  on  execution,  as 
in  other  cases  of  the  sale  of  real  estate  by  the  process  of  said  courts ;  and 
on  appeal  the  appellate  courts  shall  be  vested  with  the  same  power  to 
adjudge  and  decree  a  lien  and  to  order  such  premises  to  be  solJ  on  execu- 
tion or  decree  as  is  conferred  on  the  court  from  which  an  appeal  is  taken. 
Such  premises,  if  sold,  may  be  redeemed  as  in  other  cases.  In  all  suits 
now  pending,  or  hereafter  brought  to  recover  street  assessments,  the  pro- 
ceedings therein  shall  be  governed  and  regulated  by  the  provisions  of  this 
act.  and  also,  when  not  in  conflict  herwith,  by  the  codes  of  this  state. 
This  act  shall  be  liberally  construed  to  effect  the  ends  of  justice.  [Amend- 
ment approved  March  14,  1889,  statutes  1889,  page  168.} 

[Section  12  was  amended  in  1889  by  act  of  March  14,  1889,  statutes  '89, 
page  168.] 

SECTION  12)^'  The  city  council,  instead  of  waiting  until  the  completion 
of  the  improvement,  may,  in  its  discretion,  and  not  otherwise,  upon  the 
completion  of  two  blocks  or  more  of  any  improvement,  order  the  street 
superintendent  to  make  an  assessment  for  the  proportionate  amount  of 
the  contract  completed,  and  thereupon  proceedings  and  rights  of  collection 
of  such  proportionate  amount  shall  be  had  as  in  sections  eight,  nine,  ten, 
eleven  and  twelve  of  the  act  of  which  this  is  amendatory  is  provided. 
[Amendment  approved  March  14,  1889,  statutes  1889,  page  169.} 

[Section  12%  was  added  to  the  act  in  1889  by  the  act  of  March  14,  1889, 
statutes  1889,  page  169.] 

SECTION  13.  When  any  portion  of  any  street,  avenue,  lane,  alley,  court 
or  place  in  said  city  improved,  or  any  sidewalk  constructed  thereon  shall 
be  out  of  repair,  or  needing  reconstruction,  and  in  condition  to  endanger 
persons  or  property  passing  thereon,  or  in  condition  to  interfere  with  the 


SECS.  TWELVE  AND  ONE-HALF  TO  FOURTEEN     of  theA&t13  U> 

public  convenience  in  the  use  thereof,  it  shall  be  the  duty  of  said  superin- 
tendent of  streets  to  require,  by  notice  in  writing,  to  be  delivered  to  them 
or  their  agents  personally,  or  left  on  the  premises,  the  owners  or  occupants 
of  lots  or  portions  of  lots  fronting  on  said  portion  of  said  street,  avenue, 
alley,  lane,  court,  or  place,  or  of  said  portion  of  said  sidewalk  so  out  of 
repair  or  needing  reconstruction  as  aforesaid,  to  repair  or  reconstruct,  or 
to  do  both,  forthwith,  said  portion  of  said  street,  avenue,  lane,  alley, 
court,  or  place,  to  the  center  line  of  said  street  in  front  of  the  property  of 
which  he  is  the  owner,  or  tenant,  or  occupant,  and  said  superintendent  of 
streets  shall  particularly  specify  in  said  notice  what  work  is  required  to  be 
done,  and  how  the  same  is  to  be  done,  and  what  material  shall  be  used  in 
said  repairs,  or  reconstructions,  or  both.  If  said  repairs  or  reconstructions, 
or  both,  be  not  commenced  within  three  days  after  notice  given  as  afore- 
said, and  diligently  and  without  interruption  prosecuted  to  completion, 
the  said  superintendent  of  streets  may,  under  authority  from  said  city 
council,  make  such  repairs,  reconstruction,  or  both,  or  enter  into  a  contract 
with  any  suitable  person,  at  the  expense  of  the  owner,  tenant  or  occupant, 
after  the  specification  for  the  doing  of  said  work  shall  have  been  conspic- 
uously posted  by  him  in  his  office  for  two  days,  inviting  bids  for  the  doing 
of  said  work,  which  bids  shall  be  delivered  to  him  at  his  office  on  or  before 
the  second  day  of  said  posting,  and  opened  by  him  on  the  next  day  follow- 
ing the  expiration  of  said  two  days  of  posting,  and  the  contract  by  him  be 
awarded  to  the  lowest  bidder,  if  such  lowest  bid,  in  the  judgment  of  said 
street  superintendent,  shall  be  reasonable.  All  of  said  bids  shall  be  pre- 
served in  his  office  and  open  at  all  times  after  the  letting  of  the  contract 
to  the  inspection  of  all  persons,  and  such  owner,  tenant  or  occupant  shall 
be  liable  to  pay  said  contract  price.  Such  work  shall  be  commenced 
within  twenty-four  hours  after  the  contract  shall  have  been  signed,  and 
completed  without  delay  to  the  satisfaction  of  said  street  superintendent. 
Upon  the  completion  of  said  repairs,  or  reconstruction,  or  both,  by  said 
contractors  as  aforesaid  to  the  satisfaction  of  said  superintendent  of  streets, 
said  superintendent  of  streets  shall  make  and  deliver  to  said  contractor  a 
certificate  to  the  effect  that  said  repairs,  or  reconstruction,  or  both,  have 
been  properly  made  by  said  contractor  to  the  grade,  and  that  the  charges 
for  the  same  are  reasonable  and  just,  and  that  he,  said  superintendent, 
has  accepted  the  same.  [Amendment  approved  March  14,  1889,  statutes  1889, 
p.  169.] 

[Section  13  was  amended  in  1889  by  act  of  March  14,  1889,  statutes  1889, 
p.  169.] 

SECTION  14.  If  the  expenses  of  the  work  and  material  for  such  improve- 
ments, after  the  completion  thereof,  and  the  delivery  to  said  contractor  of 
said  certificate,  be  not  paid  to  the  contractor  so  employed,  or  his  agent  or 
assignee,  on  demand,  the  said  contractor,  or  his  assignee,  shall  have  the 
right  to  sue  such  owner,  tenant,  or  occupant,  for  the  amount  contracted  to 
be  paid  ;  and  said  certificate  of  the  superintendent  of  streets  shall  be  prima 
facie  evidence  of  the  amount  claimed  for  said  work  and  materials,  and  of 
the  right  of  the  contractor  to  recover  for  the  same  in  such  action.  Said 
certificate  shall  be  recorded  by  the  said  superintendent  of  streets  in  a  book 


16ft          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

kept  by  him  in  his  office  for  that  purpose,  properly  indexed,  and  the  sum. 
contracted  to  be  paid  shall  be  a  lien,  the  same  as  provided  in  section  nine 
of  this  act,  and  may  be  enforced  in  the  same  manner.  [Statutes  1885,  page 
158.} 

[Section  14  never  has  been  amended.] 

SECTION  15.  In  addition,  and  as  cumulative  to  the  remedies  above  given, 
the  city  council  shall  have  power,  by  resolution  or  ordinance,  to  prescribe 
the  penalties  that  shall  be  incurred  by  any  owner  or  person  liable,  or  neg- 
lecting, or  refusing  to  make  repairs  when  required,  as  provided  in  section 
(13)  thirteen  of  this  act,  which  fines  and  penalties  shall  be  recovered  for 
the  use  of  the  city  by  prosecution  in  the  name  of  the  people  of  the  state  of 
California,  in  the  court  having  jurisdiction  thereof,  and  may  be  applied,  if 
deemed  expedient  by  the  said  council,  in  the  payment  of  the  expenses  of 
any  such  repairs  not  otherwise  provided  for.  [Statutes  1885,  page  158.] 

[Section  15  never  has  been  amended.] 

SECTION  16.  The  person  owning  the  fee,  or  the  person  in  whom,  on  the 
day  the  action  is  commenced,  appears  the  legal  title  to  the  lots  and  lands, 
by  deeds  duly  recorded  in  the  county  recorder's  office  of  each  county,  or 
the  person  in  possession  of  lands,  lots  or  portions  of  lots  or  buildings  under 
claim,  or  exercising  acts  of  ownership  over  the  same  for  himself,  or  as  the 
executor,  administrator  or  guardian  of  the  owner,  shall  be  regarded, 
treated  and  deemed  to  be  the  "owner"  (for  the  purpose  of  this  law), 
according  to  the  intent  and  meaning  of  that  word  as  used  in  this  act.  And 
in  case  of  property  leased,  the  possession  of  the  tenant  or  lessee  holding 
and  occupying  under  such  persons  shall  be  deemed  to  be  the  possession  of 
such  owner.  [Statutes  1885,  page  159.] 

[Section  16  never  has  been  amended.] 

SECTION  17.  Any  tenant  or  lessee  of  the  lands  or  lots  liable  may  pay 
the  amount  assessed  against  the  property  of  which  he  is  the  tenant  or 
lessee  under  the  provisions  of  this  act,  or  he  may  pay  the  price  agreed  on 
to  be  paid  under  the  provision  of  section  thirteen  of  this  act,  either  before 
or  after  suit  brought,  together  with  cost?,  to  the  contractor,  or  his  assigns, 
or  he  may  redeem  the  property,  if  sold  on  execution  or  decree  for  the 
benefit  of  the  owner,  within  the  time  prescribed  by  law,  and  deduct  the 
amount  so  paid  from  the  rents  due  and  to  become  due  from  him,  and 
for  any  sums  so  paid  beyond  the  rents  due  from  him,  he  shall 
have  a  lien  upon  and  may  retain  possession  of  the  said  land  and  lots  until 
the  amount  so  paid  and  advanced  be  satisfied,  with  legal  interest,  from 
accruing  rents,  or  by  payment  by  the  owner.  [Statutes  1885,  page  159.] 

[Section  17  never  has  been  amended.] 

SECTION  18.  The  records  kept  by  the  superintendent  of  streets  of  said 
city,  in  conformity  with  the  provisions  of  this  act,  and  signed  by  him, 
shall  have  the  same  force  and  effect  as  other  public  records,  and  copies 
therefrom,  duly  certified,  may  be  used  in  evidence  with  the  same  effect  as 
the  originals.  The  said  records  shall,  during  all  office  hours,  be  open  to 
the  inspection  of  any  citizen  wishing  to  examine  them,  free  of  charge. 
[Statutes  1885,  page  159.] 

[Section  18  never  has  been  amended.] 


SECTIONS    FIFTEEN    TO    TWENTY-ONE       SoSdlloftoe  A"' 

SECTION  19.  Notices  in  writing  which  are  required  to  be  given  by  the 
superintendent  of  streets  under  the  provisions  of  this  act,  may  be  served 
by  any  person  with  the  permission  of  the  superintendent  of  streets,  and 
the  fact  of  such  service  shall  be  "erified  by  the  oath  of  the  person  making 
it,  taken  before  the  superintendent  of  streets,  who  for  that  purpose  and  for 
all  other  purposes,  and  in  all  cases  where  a  verification  is  required  under 
the  provisions  of  this  act  is  hereby  authorized  to  administer  oaths,  or 
other  person  authorized  to  administer  oaths,  or  such  notices  may  be  deliv- 
ered to  the  superintendent  of  streets  himself,  who  must  also  verify  the 
service  thereof,  and  who  shall  keep  a  record  of  the  fact  of  giving  such 
notices,  when  delivered  by  himself  personally,  and  also  of  the  notices  and 
proof  of  service  when  delivered  by  any  other  person.  [Amendment  approved 
March  14,  188'J.  Statutes  1889,  p.  170.] 

[Section  16  was  amended  by  the  act  of  March  14,  1889.  Statutes  1889, 
p.  170.] 

SKCTION  20.  Whenever  any  street,  or  portion  of  a  street  has  been  or 
shall  hereafter  be  fully  constructed  to  the  satisfaction  of  the  superintend- 
ent of  streets  and  of  the  city  council,  and  is  in  good  condition  throughout, 
and  a  sewer,  gas  pipes,  and  water  pipes  are  laid  therein,  under  such  regu- 
lations as  the  rity  council  shall  adopt,  the  same  shall  be  accepted  by  the 
city  council,  by  ordinance,  and  thereafter  shall  be  kept  in  repair  and 
Improved  by  the  said  municipality;  the  expense  thereof,  together  with 
the  assessment  for  street  work  done  in  front  of  city  property,  to  be  paid 
out  of  a  fund  to  lie  provided  by  said  council  for  that  purpose;  provided, 
that  the  city  council  shall  not  accept  of  any  portion  of  the  street  less  than 
the  entire  width  oi  the  roadway  (including  the  curbing),  and  one  block  in 
length,  or  one  entire  crossing;  and  provided  further,  that  the  city  council 
may  partially  or  conditionally  accepf  any  street,  or  portion  of  a  street, 
without  a  sewer,  or  gas  pipes,  or  water  pipes,  therein,  if  the  ordinance  of 
acceptance  expressly  states  that  the  council  deems  such  sewer,  or  gas 
pipes,  or  water  pipes,  to  be  then  unnecessary,  but  the  lots  of  land  pre- 
viously or  ut  any  time  assessable  for  the  cost  of  constructing  a  sewer,  shall 
remain  and  be  assessable  for  such  cost  and  for  the  cost  of  repairs  and  restor- 
ation of  the  street  damaged  in  the  said  construction,  whenever  said  council 
shall  deem  a  sewer  to  be  necessary,  and  shall  order  it  to  be  constructed, 
the  same  as  if  no  partial  or  conditional  acceptance  had  ever  been  made. 
The  superintendent  of  streets  shall  keep  in  his  office  a  register  of  all  streets 
accepted  by  the  city  council  under  this  section,  which  register  shall  be 
indexed  for  easy  reference  thereto.  [Statutes  1885,  p.  160.} 

[Section  20  never  has  been  amended.] 

SECTION  21.  The  superintendent  of  streets  shall  keep  a  public  office  in 
some  convenient  place  within  the  municipality,  and  such  records  as  may 
be  required  by  the  provisions  of  this  act.  He  shall  superintend  and  direct 
the  cleaning  of  all  sewers,  and  the  expense  of  the  same  shall  be  paid  out 
of  the  street  or  sewer  fund  of  said  city.  [Statutes  1885,  p.  160.} 

[Section  21  never  has  been  amended.] 


18tt          STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

SECTION  22.  It  stiall  be  the  duty  of  the  superintendent  of  streets  to  see 
that  the  laws,  ordinances,  orders,  and  regulations  relating  to  the  public 
streets  and  highways  be  fully  carried  into  execution,  and  that  the  penal- 
ties thereof  are  rigidly  enforced.  He  shall  keep  himself  informed  of  the 
condition  of  all  the  public  streets  and  highways,  and  also  of  all  public 
buildings,  parks,  lots,  and  grounds  of  said  city,  as  may  be  prescribed  by 
the  city  council.  He  shall,  before  entering  upon  the  duties  of  his  office, 
give  bonds  to  the  municipality,  with  such  sureties  and  for  such  sums  as 
may  be  required  by  the  city  council;  and  should  he  fail  to  see  the  laws, 
ordinances,  orders  and  regulations  relative  to  the  public  streets  or  high- 
ways carried  into  execution,  after  notice  from  any  citizen  of  a  violation 
thereof,  he  and  his  sureties  shall  be  liable  upon  his  official  bond  to  any 
person  injured  in  his  person,or  property  in  consequence  of  said  official  neg- 
lect. [Statutes  1885,  p.  160.} 

[Section  22  never  has  been  amended.] 

SECTION  23.  If,  in  consequence  of  any  graded  street  or  public  high  way 
improved  under  the  provisions  of  this  act,  being  out  of  repair  and  in  con- 
dition to  endanger  persons  or  property  passing  thereon,  any  person  while 
carefully  using  said  street  or  public  highway,  and  exercising  ordinary  care 
to  avoid  the  danger,  suffer  damage  to  his  person  or  property,  through  any 
such  defect  therein,  no  recourse  for  damages  thus  suffered  shall  be  had 
against  such  city ;  but  if  such  defect  in  the  street  or  public  highway  shall 
have  existed  for  the  period  of  twenty-four  hours  or  more  after  notice 
thereof  to  the  said  superintendent  of  streets,  then  the  person  or  persons  on 
whom  the  law  may  have  imposed  the  obligations  to  repair  such  defect  in  the 
street  or  public  highway,  and  also  the  officer  or  officers  through  whose  official 
negligence  such  defect  remains  unrepaired,  shall  be  jointly  and  severally 
liable  to  the  party  injured  for  the  damage  sustained;  provided,  that  said 
superintendent  has  the  authority  to  make  said  repairs,  under  the  direction 
of  the  city  council,  at  the  expense  of  the  city.  [Statutes  1885,  p.  161.] 

[Section  23  of  the  act  never  has  been  amended.] 

SECTION  24.  The  city  council  of  such  city  shall  have  full  power  and 
authority  to  construct  sewers,  gutters,  and  manholes,  and  provide  for  the 
cleaning  of  the  same,  and  culverts  or  cesspools,  or  crosswalks  or  sidewalks, 
or  any  portion  of  any  sidewalk, upon  or  in  any  street,  avenue, lane,  alley,  court 
or  place  in  such  city;  and  also  for  drainage  purposes,  over  or  through  any 
right  of  way  obtained  or  granted  for  such  purposes,  with  necessary  and 
proper  outlet  or  outlets  to  the  same,  of  such  materials,  in  such  a  manner, 
and  upon  such  terms  as  it  may  be  deemed  proper.  None  of  the  Work  or 
improvements  described  in  this  section  shall  be  stayed  or  prevented  by 
any  written  or  any  other  remonstrance  or  objection,  unless  such  council 
deems  proper.  [Amendment  approved  March  11,  1893,  statutes  1893,  p.  173.} 

[Section  24  was  amended  by  the  act  of  March  14,  1889,  statutes  1889,  p. 
170;  again  by  act  of  March  31,  1891,  statutes  1891,  p.  206;  and  again  by 
the  act  of  March  11,  1893,  statutes  1893,  p.  173. 

SECTION  25.  The  city  council  may,  in  its  discretion,  repair  and  water 
streets  that  shall  have  been  graded,  curbed  and  planked,  paved  or  macada- 


PART    II  Secs-  23-  24-  25-  26,  27 

and  28  of  the  Act 


ized,  and  may  build,  repair  and  clean  sewers,  and  shall  provide  a  street 
contingent  fund  at  the  same  time  and  in  the  same  manner  as  other  fundq 
are  provided,  out  of  which  to  pay  the  costs  and   expenses  of  makin-  said 
repair,  and  watering  said  streets  and  building,  repairing  and  cleaning  Sa 
•ewers;  but  whenever  any  unaccepted  street  or  part  of  a  street  requires 
regrading.     recurbing,    repiling,     repaving,    replanking,    regraveling    , 
remacadamizing  or  requires  new  culverta  or  new  crosswalks  or  new  side 
walks  or  new  sewers,  the  work  shall  be  advertised  and  let  out  by  contract 
and  the  costs  and  expenses  thereof  shall  be  assessed  upon  the  propertv 
affected  or  benefited  thereby,  the  same  as  in  the  first  instance.     [Statutes 
18S5,  page  161.} 

[Section  25  of  the  act  has  never  been  amended.] 

SECTION  26.  The  city  council  may,  in  its  discretion,  order,  by  resolution 
that  the  whole  or  any  part  of  the  cost  and  expenses  of  any  of  the  work 
mentioned  in  this  act  be  paid  out  of  the  treasury  of  the  municipality  from 
luch  fund  as  the  council  may  designate.  Whenever  a  part  of  such  cost 
and  expenses  is  so  ordered  to  be  paid  the  superintendent  of  streets,  in 
making  up  the  assessment  heretofore  provided  for  such  cost  and  expenses, 
shall  first  deduct  from  the  whole  cost  and  expenses  such  part  thereof  as  has 
been  so  ordered  to  be  paid  out  of  the  mu  .icipal  treasury,  and  shall  assess  the 
remainder  of  said  cost  and  expenses  proportionately  upon  the  lots,  parts 
of  lota  and  lands  fronting  on  the  streets  where  said  work  was  done,  or 
liable  to  be  assessed  for  such  work,  and  in  the  manner  heretofore  pro- 
vided. [Amendment  approved  March  31,  1891,  statutes  1891,  page  206.} 

[Section  2<>  was  amended  by  act  of  M.ur,h    14,  1839,  statutes  1839,  page 
17«»,  and  again  by  the  act  of  March  31,  1891,  statutes  1891,  page  206.]' 


PART  II. 

SECTION  27.  Whenever  the  city  council  deem  it  necessary  to  construct  a 
sewer,  then  the  said  council  may,  in  its  discretion,  determine  to  construct 
said  sewer,  and  assess  the  cost  and  expenses  thereof  upon  the  property  to 
be  affected  or  benefited  thereby,  in  such  manner  and  within  such  assess- 
ment district  as  it  shall  prescribe,  and  the  lien  therefor  upon  said  property 
shall  be  the  same  as  is  provided  in  section  nine  of  this  act,  or  said  council 
may  determine  to  construct  said  sewer  and  pay  therefor  out  of  the  street 
contingent  fund.  [Statutes  1885,  page  162.} 

[Section  27  of  the  act  never  has  been  amended.] 

SECTION  28.  If,  at  any  time,  the  city  council  shall  deem  it  necessary  to 
incur  any  indebtedness  for  the  construction  of  sewers,  in  excess  of  the 
money  in  the  street  contingent  fund  applicable  to  the  construction  of  such 
sewers,  they  shall  give  notice  of  a  special  election  by  the  qualified  electors 
of  the  city,  to  be  held  to  determine  whether  such  indebtedness  shall  be 
incurred.  Such  notice  shall  specify  the  amount  of  indebtedness  proposed 
to  be  incurred,  the  route  and  general  character  of  the  sewer  or  sewers  to 
be  constructed,  and  the  amount  of  money  necessary  to  be  raised  annually 
by  taxation  for  an  interest  and  sinking  fund  as  hereinafter  provided. 


20(2    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

Such  notice  shall  be  published  for  at  least  three  weeks  in  some  newspaper 
published  in  such  city,  and  no  other  question  or  matter  shall  be  submitted 
to  the  electors  at  such  election.  If,  upon  a  canvass  of  the  votes  cast  at 
such  election,  it  appear  that  not  less  than  two-thirds  of  all  the  qualified 
electors  voting  at  such  election  shall  have  voted  in  favor  of  incurring  such 
indebtedness,  it  shall  be  the  duty  of  the  city  council  to  pass  an  ordinance 
providing  for  the  mode  of  creating  such  indebtedness,  and  of  paying  the 
same;  and  in  such  ordinance  provision  shall  be  made  for  the  levy  and 
collection  of  an  annual  tax  upon  all  the  real  and  personal  property  subject 
to  taxation,  within  such  city,  sufficient  to  pay  the  interest  on  such  indebt- 
edness as  it  falls  due,  and  also  to  constitute  a  sinking  fund  for  the  payment 
of  the  principal  thereof,  within  a  period  of  not  more  than  twenty  5  ears 
from  the  time  of  contracting  the  same.  It  shall  be  the  duty  of  the  city 
council  in  each  year  thereafter,  at  the  time  when  other  taxes  are  levied, 
to  levy  a  tax  sufficient  for  such  purpose,  in  addition  to  the  taxes  author- 
ized to  be  levied  for  city  purposes.  Such  tax,  when  collected,  shall  be 
kept  in  the  treasury  as  a  separate  fund,  to  be  inviolably  appropriated  to 
the  payment  of  the  principal  and  interest  of  such  indebtedness.  [Statutes 
1885,  page  162.] 

[Section  28  has  never  been  amended.] 

SECTION  29.  If  bonds  are  issued  under  the  provisions  of  the  last  section, 
said  bonds  shall  be  in  sums  of  not  less  than  one  hundred  dollars  nor  more 
than  one  thousand  dollars,  shall  be  signed  by  the  mayor  and  treasurer  of 
the  city,  and  the  seal  of  the  city  shall  be  affixed  thereto.  Coupons  for  the 
interest  shall  be  attached  to  each  bond,  signed  by  the  mayor  and  treasurer. 
Said  bonds  shall  bear  interest,  to  be  fixed  by  the  city  council,  at  the  rate 
of  not  to  exceed  five  per  cent,  per  annum.  [Statutes  1885,  page  163.} 

[Section  29  has  never  been  amended.] 

SECTION  30.  Before  the  sale  of  said  bonds,  the  council  shall,  at  a  regular 
meeting  by  resolution,  declare  its  intention  to  sell  a  specified  amount  of 
said  bonds,  and  the  day  and  hour  of  such  sale,  and  shall  cause  such  resolu- 
tion to  be  entered  in  the  minutes,  and  shall  cause  notice  of  such  sale  to  be 
published  for  fifteen  days  in  at  least  one  newspaper  published  in  the  city 
in  which  the  bonds  are  issued  and  one  published  in  the  city  and 
county  of  San  Francisco,  and  in  any  other  newspaper  in  the  state,  at 
their  discretion.  The  notice  shall  state  that  sealed  proposals  will  be 
received  by  the  council  for  the  purchase  of  the  bonds  on  the  day  and  hour 
named  in  the  resolution.  The  council,  at  the  time  appointed,  shall  open 
the  proposals  and  award  the  purchase  of  the  bonds  to  the  highest  bidder, 
but  may  reject  all  bids.  [Statutes  1885,  page  163.] 

[Section  30  has  never  been  amended.] 

SECTION  31.  The  council  may  sell  said  bonds,  at  not  less  than  par  value, 
without  the  notice  provided  for  in  the  preceding  section.  [Statutes  1885, 
page  163.  j 

[Section  31  has  never  been  amended.] 

SECTION  32.  The  proceeds  of  the  sale  of  the  bonds  shall  be  deposited  in 
the  city  treasury,  to  the  account  of  the  sewer  fund,  but  no  payment  there- 
from shall  be  made,  except  to  pay  for  the  construction  of  the  sewer  or 


PART    III  Pecs  29  30  31, 32, 33        o-| 

and  34  of  the  Act.  « A« 

nvers  for  the  construction  of  which  the  bonds  were  issued,  and  upon  the 
-rtificate  of  the  superintendent  of  streets  and  the  city  engineer,  that  the 
Drk  has  been  done  according  to  the  contract;  provided,  that  after  the 
)mpletion  of  the  sewers,  for  the  construction  of  which  said  bonds  were 
ued,  if  there  be  any  money  of  said  fund  left  in  the  treasury,  the  same 
may  be  transferred  to  the  general  fund,  for  general  purposes.  [Statutes 
1887,  page  148.} 

[Section  32  was  amended  by  act  of  March  15,  1887,  statutes  1887,  p.  148.] 
SKCTION  :;:;.  Whenever  said  council  shall  determine  to  construct  any 
sewer,  and  pay  therefor  out  of  the  street  contingent  fund,  or  by  the 
issuance  of  bonds,  as  above  provided,  then  said  council  shall  cause  to  be 
prepared  plans  and  specifications  of  said  work  in  sections,  and  shall  adver- 
tise for  twenty  days  in  at  least  one  newspaper  published  in  the  city  in 
which  the  sewer  is  to  be  constructed,  and  one  in  the  city  and  county  of  San 
Francisco,  for  sealed  proposals  for  constructing  said  sewer.  The  work 
may  be  let  in  sections,  and  must  be  awarded  to  the  lowest  responsible 
bidder,  the  council  having  the  right  to  reject  any  and  all  bids.  The  work 
shall  be  done  and  the  materials  furnished  under  the  supervision  and  to 
tlie  satisfaction  of  the  superintendent  of  streets  and  the  city  engineer. 
[Statutes  1885,  page  163.] 
[Section  33  has  never  been  amended.] 

PART  III. 

SK<T  i  ON  :>4.  Firxt — The  city  engineer, or  where  there  is  no  city  engineer, 
the  county,  or  city  and  county  surveyor,  shall  be  the  proper  officer  to 
do  the  surveying  and  other  engineering  work  necessary  to  be  done 
under  this  act,  and  to  survey  and  measure  the  work  to  be  done  under 
contracts  for  grading  and  macadamizing  streets,  and  to  estimate  the  costs 
and  expenses  thereof;  and  every  certificate  signed  by  him  in  his  official 
character  shall  be  priina  facie  evidence  in  all  courts  in  this  state  of  the 
truth  of  its  contents.  He  shall  also  keep  a  record  of  all  surveys  made 
under  the  provisions  of  this  act,  as  in  other  cases.  In  all  those  cities  where 
there  is  no  city  engineer,  the  city  council  thereof  is  hereby  authorized  and 
empowered  to  appoint  a  suitable  person  to  discharge  the  duties  herein  laid 
down  as  those  of  city  engineer,  and  all  the  provisions  hereof  applicable  to 
the  city  engineer  shall  apply  to  such  person  so  appointed.  Said  city 
council  is  hereby  empowered  to  fix  his  compensation  for  such  services. 

Second — The  words  "work,"  "improve,"  "improved,"  and  "improve- 
ment," as  used  in  this  act,  shall  include  all  work  mentioned  in  this  act, 
and  also  the  construction,  reconstruction,  and  repairs  of  all  or  any  portion 
of  said  work. 

Third — The  term  "incidental  expenses,"  as  used  in  this  act,  shall  include 
the  compensation  of  the  city  engineer  for  work  done  by  him ;  also,  the  cost 
of  printing  and  advertising  as  provided  in  this  act,  and  not  otherwise;  also, 
the  compensation  of  the  person  appointed  by  the  superintendent  of  streets 
to  take  charge  of  and  superintend  any  of  the  work  mentioned  in  section 
thirty-five  of  this  act.  All  demands  for  incidental  expenses  mentioned  in 


22a    STREET  WORK  LAW STREET  IMPROVEMENT  ACT 

this  sub-division  shall  be  presented  to  the  street  superintendent  by 
itemized  bill,  duly  verified  by  oath  of  the  demandant. 

Fourth— The  notices,  resolutions,  orders,  or  other  matter,  required  to  be 
published  by  the  provisions  of  this  act,  and  of  the  act  of  which  this  is 
amendatory,  shall  be  published  in  a  daily  newspaper,  in  cities  where  such 
there  is,  and  where  there  is  no  daily  newspaper,  in  a  semi- weekly  or  weekly 
newspaper,  to  be  designated  by  the  council  of  such  city,  as  often  as  the 
same  is  issued,  and  no  other  statute  shall  govern  or  be  applicable  to  the 
publications  herein  provided  for;  provided,  however,  that  only  in  case 
there  is  no  daily,  semi-weekly  or  weekly  newspaper  printed  or  circu- 
lated in  any  such  city,  then  such  notices,  resolutions,  orders,  or  other 
matters,  as  are  herein  required  to  be  published  in  a  newspaper,  shall  be 
posted  and  kept  posted  for  the  same  length  of  time  as  required  herein  for 
the  publication  of  the  same  in  a  daily,  semi-weekly,  or  weekly  newspaper, 
in  three  of  the  most  public  places  in  such  city.  Proof  of  the  publication 
or  posting  of  any  notice  provided  for  herein  shall  be  made  by  affidavit  of 
the  owner,  publisher,  or  clerk  of  the  newspaper,  or  of  the  poster  of  the 
notice.  No  publication  or  notice,  other  than  that  provided  for  in  this  act, 
shall  be  necessary  to  give  validity  to  any  of  the  proceedings  provided  for 
therein. 

Fifth — The  word  "municipality,"  and  the  word  "city,"  as  used  in  this 
act,  shall  be  understood  and  so  construed  as  to  include,  and  is  hereby 
declared  to  include,  all  corporations  heretofore  organized  and  now  existing, 
and  those  hereafter  organized,  for  municipal  purposes. 

Sixth — The  words  "paved,"  or  "repaved,"  as  used  in  this  act,  shall  be 
held  to  mean  and  include  pavement  of  stone,  whether  paving  blocks  or 
macadamizing,  or  of  bituminous  rock  or  asphalt,  or  of  iron,  wood,  or  other 
material,  whether  patented  or  not,  which  the  city  council  shall  by  ordi- 
nance adopt. 

Seventh— The  word  "street,"  as  used  in  this  act,  shall  be  deemed  to,  and 
is  hereby  declared  to  include  avenues,  highways,  lanes,  alley,  crossings,  or 
intersections,  courts,  and  places,  and  the  term  "main  street"  means  such 
actually  opened  street  or  streets  as  bound  a  block;  the  word  "blocks," 
whether  regular  or  irregular,  shall  mean  such  blocks  as  are  bounded  by 
main  streets,  or  partially  by  a  boundary  line  of  the  city. 

Eighth — The  terms  "street  superintendent,"  and  "superintendent  of 
streets,"  as  used  in  this  act,  shall  be  understood,  and  so  construed  as  to 
include,  and  are  hereby  declared  to  include  any  person  or  officer  whose 
duty  it  is,  under  the  law,  to  have  the  care  or  charge  of  the  streets,  or  the 
improvement  thereof  in  any  city.  In  all  those  cities  where  there  is  no 
street  superintendent  or  superintendent  of  streets,  the  city  council  thereof 
is  hereby  authorized  and  empowered  to  appoint  a  suitable  person  to  dis- 
charge the  duties  herein  laid  down,  as  those  of  street  superintendent  or 
superintendent  of  streets ;  and  all  provisions  hereof  applicable  to  the  street 
superintendent  or  superintendent  of  streets,  shall  apply  to  such  person  so 
appointed . 

Ninth — The  term  "city  council"  is  hereby  declared  to  include    any  body 


DEFINITION    OF    TERMS  Sees.  35and3G       90 

of  the  Act.  &wb 

or  board  which,  under  the  law,  is  the  legislative  department  of  the  govern- 
ment of  any  city. 

Tenth— In  municipalities  in  which  there  is  no  mayor,  then  the  duties 
imposed  upon  said  officer  by  the  provisions  of  this  act  shall  be  performed 
by  the  president  of  the  board  of  trustees,  or  other  chief  -executive  officer 
of  the  municipality. 

Eleventh— The  term  "clerk"  and  "city  clerk,"  as  used  in  this  act,  is 
hereby  declared  to  include  any  person  or  officer  who  shall  be  clerk  of  the 
said  city  council. 

Tn;>lfth— The  term  "quarter  block,"  as  used  in  this  act  as  to  irregular 
blocks,  shall  be  deemed  to  include  all  lots  or  portions  of  lots  having  any 
frontage  on  either  intersecting  street  half  way  from  such  intersection  to  the 
next  main  street,  or  when  no  main  street  intervenes,  all  the  way  to  a 
boundary  line  of  the  city. 

Thirteenth — The  term  "one  year,"  as  used  in  this  act,  shall  be  deemed  to 
include  the  time  beginning  with  January  first  and  ending  with  the  thirty- 
first  day  of  December  of  the  same  year. 

Fourteenth — References  in  certain  sections,  by  number,  to  certain  other 
sections  of  "this  act"  refer  to  the  number  of  the  sections  of  the  original 
act  as  heretofore  amended,  unless  it  appears  from  the  context  that  the  ref- 
erence is  to  the  section  of  this  amendatory  act,  when  it  shall  be  construed 
according  to  the  context.  [Amendment  approved  March  31,  1X91.  Statutes 
1891,  page  206.] 

fSection  34  was  amended  by  act  of  March  14, 1889,  statutes  1889,  page  157 
also  by  the  act  of  March  31,  1891,  statutes  1891,  page  206.] 

SECTION  35.  The  superintendent  of  streets  shall,  when  in  his  judgment 
it  is  necessary,  appoint  a  suitable  person  to  take  charge  of  and  superintend 
the  construction  and  improvement  of  each  and  every  sewer  constructed  or 
improved  under  the  provisions  of  this  act,  and  of  piling  and  capping,  side- 
walking,  or  of  the  paving  of  whatever  character  heretofore  mentioned,  in 
whole  or  in  part,  of  one  block  or  more,  whose  duty  it  shall  be  to  see  that 
the  contract  made  for  the  doing  of  said  work  is  strictly  fulfilled  in  every 
respect,  and  in  case  of  any  departure  therefrom  to  report  the  same  to  the 
superintendent  of  streets.  Such  person  shall  be  allowed  for  his  time  actu- 
ally employed  in  the  discharge  of  his  duties  such  compensation  as  shall  be 
just,  but  not  to  exceed  four  dollars  per  day.  The  sum  to  which  the  party 
BO  employed  shall  be  entitled  shall  be  deemed  to  be  incidental  expenses, 
within  the  meaning  of  those  words  as  defined  by  this  act.  [Amendment 
approved  March  31,  1891,  statutes  1891,  page  208.] 

[The  act  of  March  14,  1889,  statutes  '89,  p.  157,  attempted  to  amend  sec- 
tion 35.  and  section  35  as  amended  is  embraced  in  the  body  of  the  act, 
[statutes  '89,  p.  173,]  but  the  title  of  the  act  does  not  mention  this  section. 
The  section  was  amended  in  1891  by  the  act  of  March  31, 1891,  statutes  '91, 
p.  208.] 

SECTION  36.  The  act  entitled  "An  act  to  provide  for  the  improvement  of 
streets,  lanes,  alleys,  courts,  places,  and  sidewalks,  and  the  construction  of 
sewers  within  municipalities,"  approved  March  sixth,  eighteen  hundred 


STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

and  eighty-three,  is  hereby  repealed;  provided,  that  any  work  or  proceed- 
ings commenced  thereunder  prior  to  the  passage  of  this  act  shall  in  nowise 
be  affected  hereby,  but  shall  in  all  respects  be  finished  and  completed 
under  said  act  of  March  sixth,  eighteen  hundred  and  eighty-three, and  said 
repeal  shall  in  nowise  affect  said  work  or  proceedings.  [Statutes  '85,  p.  165.] 
[Section  36  has  never  been  amended.] 

SECTION  37.  That  said  act  shall  take  effect  and  be  in  force  immediately 
upon  its  passage,  and  all  acts  and  parts  of  acts  in  conflict  with  this  act  are 
hereby  repealed;  and,  provided,  however,  that  any  work  or  proceeding  of  the 
city  council  commenced  under  the  act  of  which  this  is  amendatory  shall  in 
nowise  be  affected  thereby,  but  shall  in  all  respects  be  finished  and  com- 
pleted thereunder.  [Amendment  approved  March  11, 1893,  statutes  1893,  page 
173.} 

[Section  37  was  amended  in  1889  by  the  act  of  March  14,  1889,  statutes 
'89,  p.  173;  again  in  1891  by  the  act  of  March  31, 1891,  statutes  '91,  p.  209; 
and  again  in  1893  by  the  act  of  March  11,  1893,  statutes  '93,  p  173.] 

SECTION  38.  The  city  council  is  hereby  empowered  to  change  or  modify 
tne  grade  of  any  public  street,  lane,  alley,  place,  or  court,  and  to  regrade  or 
repave  the  same,  so  as  to  coniorm  to  such  modified  grade,  in  the  manner  as 
hereinafter  provided.  Before  any  change  of  grade  is  ordered  the  city  coun- 
cil-shall pass  an  ordinance  or  resolution  of  intention  to  make  such  change 
or  modification  of  grade,  and  it  shall  have  power  at  the  same  time  and  in 
the  same  ordinance  or  resolution  to  provide  for  the  actual  cost  of  perform- 
ing the  work  of  regrading,  repaving,  sewering,  sidewalking,  or  curbing  of 
said  street  or  portion  of  street,  with  the  same  or  other  material  with  which 
it  was  formerly  graded,  paved,  sewered,  side  walked  or  curbed  ;  and  that  the 
cost  of  the  same  shall  also  be  assessed  upon  the  same  district  which  is 
declared  to  be  benefited  by  such  changed  or  modified  grade.  One  or  more 
streets  or  blocks  of  streets  may  be  embraced  in  the  same  ordinance  or  reso- 
lution. Such  ordinance  or  resolution  shall  be  published  in  the  newspaper 
in  which  the  official  notices  of  the  city  council  are  usually  printed  and  pub- 
lished j  and  such  newspaper  is  to  be  designated  in  such  ordinance  or  reso- 
lution. Such  publication  shall  be  made  in  every  regular  issue  of  such  paper 
for  not  less  than  ten  days,  and  shall  describe  the  proposed  change  or  mod- 
ification of  grade  or  regrading,  and  shall  designate  and  establish  the  district 
to  be  benefited  by  such  change  or  modification  of  grade  or  regrading,  and 
to  be  assessed  for  the  cost  of  the  same.  Within  five  days  after  the  first 
publication  of  the  ordinance  or  resolution  of  intention,  the  superintendent 
of  streets  shall  cause  to  be  conspicuously  posted  within  the  district  desig* 
nated  in  the  ordinance  or  resolution,  notice  of  the  passage  of  said  resolution. 
Said  notices  shall  be  the  same  in  all  requirements  of  contents  and  posting 
as  the  "notices  of  street  work"  provided  for  in  section  three  of  the  original 
act  to  which  this  is  amendatory.  If  no  objection  to  said  proposed  change 
or  changes,  or  modifications  of  grade,  shall  be  filed  with  the  clerk  of  the 
council  within  thirty  days  from  the  first  publication  of  the  ordinance  or 
resolution  of  intention  hereinbefore  mentioned,  the  city  council  shall  have 
power  to  declare  such  grades  to  be  changed  and  established  in  conformity 


TTT  Sees.  37  to  44,  as  amended 

March  9,  Ifc93. 

to  said  ordinance  or  resolution,  provided,  that  no  change  of  an  established 
grade  shall  be  ordered  except  on  petition  of  the  owners  of  a  majority  of  the 
property  affected  by  the  proposed  change  of  grade.  [Amendment  approved 
March  9,  1893,  statutes  J93,  p.  89.] 

SECTION  39.  Within  thirty  days  after  the  first  publication  of  said  notice, 
any  person  owning  property  fronting  upon  said  portions  of  the  street  or 
streets  where  such  change  of  grade  is  made,  may  file  a  petition  with  the 
clerk  of  the  city  council  showing  the  fact  of  such  ownership,  the  descrip- 
tion and  situation  of  the  property  claimed  to  be  damaged,  its  market  value, 
and  the  estimated  amount  of  damages  over  and  above  all  benefits 
which  the  property  would  sustain  by  the  proposed  change  if  completed. 
Such  petition  shall  be  verified  by  the  oath  of  the  petitioners  or  their 
agents.  [Amendment  approved  March  9,  1893,  statutes  1893,  page  90. 

SECTION  40.  Whenever  such  petition  or  petitions  have  been  filed,  the 
mayor,  surveyor,  and  superintendent  of  streets,  of  the  city,  or  city  and 
county,  acting  as  a  board  of  commissioners,  shall  assess  the  benefits,  dam- 
ages, and  costs  of  the  proposed  change  of  grade  upon  each  separate  lot  of 
land  situated  within  such  assessment  district,  as  said  lot  appears  of  record 
upon  the  last  city,  or  city  and  county  assessment  roll.  [Amendment  approved 
March  9,  1893,  statutes  1893,  p.  90.] 

SECTION  41.  The  commissioners  shall  be  sworn  to  make  the  assessments 
of  benefits  and  damages  to  the  best  of  their  judgment  and  ability,  without 
fear  or  favor.  [Amendment  approved  March  9,  1893,  statutes  1893,  p.  90.] 

SECTION  42.  The  commissioners  shall  have  power  to  subpoena  witnesses 
to  appear  before  them  to  be  examined  under  oath,  which  any  one  of  said 
commissioners  is  authorized  to  administer.  [Amendment  approved  March  9, 
1893,  statutes  1893,  p.  90.] 

SKI  TION  43.  The  commissioners  having  determined  the  damage  which 
would  be  sustained  by  each  petitioner,  in  excess  of  all  benefits,  shall  pro- 
ceed to  assess  the  total  amount  thereof,  together  with  the  costs,  charges, 
and  expenses  of  the  proceedings,  upon  the  several  lots  of  land  benefited 
within  the  district  of  assessment;  so  that  each  of  the  lots  shall  be  assessed 
in  accordance  with  its  benefits  caused  by  such  work  or  improvement ;  and 
during  the  progress  of  their  work  shall  make  a  report  to  such  city  council 
as  often  as  it  may  be  required.  [Amendment  approved  March  9,  1893,  stat- 
utes 1893,  p.  90.] 

SECTION  44.  The  commissioners  shall  make  their  report,  in  writing, 
and  shall  subscribe  to  the  same  and  file  with  the  city  council.  In  their 
said  report  they  shall  describe  separately  each  piece  of  property  which  will 
sustain  damage,  stating  the  amount  of  damages  each  will  sustain  over  and 
above  all  benefits.  They  shall  also  give  a  brief  description  of  each  lot  ben- 
efited within  said  assessment  district,  the  name  of  the  owner,  if  known, 
and  the  amount  of  benefits  in  excess  of  damages  assessed  against  the  same. 
In  case  the  three  commissioners  do  not  agree,  the  award  agreed  upon  by 
any  two  of  them  shall  be  sufficient.  In  designating  the  lots  to  be  assessed, 
reference  may  be  had  to  a  diagram  of  the  property  in  the  district  affected ; 


26a         STREET  WORK  LAW — STREET    IMPROVEMENT   ACT 

such  diagram  to  be  attached  to  and  made  a  part  of  the  report  of  the  com- 
missioners. [Amendment  approved  March  9,  1893,  statutes  1893,  p.  91.] 

SECTION  45.  If  in  any  case  the  commissioners  find  that  conflicting 
claims  of  title  exist,  or  shall  be  in  ignorance  or  doubt  of  the  ownership  of 
any  lot  or  land,  or  any  improvement  thereon,  or  any  interest  therein,  it 
shall  be  set  down  as  belonging  to  unknown  owners.  Error  in  the  designa- 
tion of  the  owner  or  owners  of  any  land  or  improvements,  or  particulars  of 
their  interest,  shall  not  affect  the  validity  of  the  assessment.  On  the  filing 
of  said  report,  the  clerk  of  said  city  council  shall  give  notice  of  such  filing 
by  the  publication  of  at  least  ten  days  in  one  or  more  daily  newspapers 
published  and  circulated  in  said  city ;  or  if  there  be  no  daily  newspaper, 
by  three  successive  issues  in  a  weekly  or  semi-weekly  newspaper  so  pub- 
lished and  circulated ;  and  said  notice  shall  require  all  persons  interested 
to  show  cause,  if  any,  why  such  report  should  not  be  confirmed,  before  the 
city  council,  on  a  day  to  be  fixed  by  the  city  council  and  stated  in  said 
notice,  which  day  shall  not  be  less  than  twenty  days  from  the  first  publi- 
cation thereof.  [Amendment  approved  March  9,  1893,  statutes  1893,  page  91.] 

SECTION  46.  All  objections  shall  be  in  writing  and  filed  with  the  clerk 
of  the  city  council,  who  shall  at  the  next  meeting  after  the  date  fixed  in 
the  notice  to  show  cause,  lay  the  said  objections,  if  any,  before  the  council, 
which  shall  fix  a  time  for  hearing  the  same;  of  which  time  the  clerk  shall 
notify  the  objectors  in  the  same  manner  as  are  notified  objectors  to  the 
original  resolution  of  intention.  At  the  time  set,  or  at  such  other  time  as 
tne  hearing  may  be  adjourned,  the  city  council  shall  hear  such  objections 
and  pass  upon  the  same,  and  at  such  time  shall  proceed  to  pass  upon  such 
report,  and  may  confirm,  correct,  or  modify  the  same,  or  may  order  the 
commissioners  to  make  a  new  assessment,  report,  and  plat,  which  shall  be 
filed,  notice  given  and  had,  as  in  the  case  of  an  original  report.  In  case 
the  ordinance  or  resolution  of  intention  also  provides  for  the  assessing 
upon  the  district  the  cost  of  regrading  or  repaving  such  street  or  streets  to 
such  changed  or  modified  grade,  after  the  report  of  the  commissioners  as 
to  the  damages  caused  by  such  change  of  grade  has  been  passed  upon  by 
the  city  council,  it  shall  then  advertise  for  bids  to  perform  the  work  of 
regrading,  repaving,  sewering,  sidewalking,  or  curbing  such  street  or 
streets  with  the  same  or  other  material  with  which  the  same  had  been  for- 
merly graded,  paved,  sewered,  sidewalked,  or  curbed;  first  causing  a  notice, 
with  specifications,  to  be  posted  conspicuously  for  five  days  on  or  near  the 
council  chamber  door,  inviting  sealed  proposals  for  bids  for  doing  such 
work,  and  shall  also  cause  notices  of  said  work,  inviting  said  proposals  and 
referring  to  the  specifications  posted  or  on  file,  to  be  published  two  days 
in  a  daily,  semi-weekly,  or  weekly  newspaper  published  and  circulated  in 
said  city,  and  designated  by  the  city  council  for  that  purpose,  and  in  case 
there  is  no  newspaper  published  in  the  city,  then  it  shall  be  posted  as 
provided  in  section  three  of  the  original  act  to  which  this  is  amendatory. 
All  proposals  or  bids  offered  shall  be  accompanied  by  a  check,  payable  to 
the  order  of  the  mayor  of  the  city,  and  certified  by  a  responsible  bank  for 
that  amount,  which  shall  not  be  less  than  ten  per  cent,  of  the  aggregate  of 
the  proposals ;  or  by  a  bond  for  said  amount,  signed  by  the  bidder  and  two 


P4T?T    TTT  Sees.  40  to  48  as  amended    07  ~ 

March  9.  1893.  *  '  & 

sureties,  who  shall  justify  under  oath  in  double  said  amount  over  and 
above  all  statutory  exemptions.  Said  proposals  or  bids  shall  be  delivered 
to  the  clerk  of  the  said  city  council, 'and  said  council  shall,  in  open  ses- 
sion, examine  and  publicly  declare  the  same;  provided,  however,  that  no 
proposal  or  bid  shall  be  considered  unless  accompanied  by  a  check  or  a 
bond  satisfactory  to  the  council.  The  city  council  may  reject  any  and  all 
bids,  and  may  award  the  contract  to  the  lowest  responsible  bidder,  which 
award  shall  be  approved  by  the  mayor  or  the  three-fourths  vote  of  the  city 
council.  If  not  approved  by  the  mayor  or  the  three-fourths  vote  of  the 
city  council,  the  city  council  may  re-advertise  for  proposals  or  bids  for 
the  performance  of  the  work,  as  in  the  first  instance,  and  thereafter  pro- 
ceed in  the  manner  in  this  section  provided.  All  checks  accompanying 
bids  [shall  be  held  by  the  clerk  until  the  bearer  has  entered  into  a  contract 
as  herein  provided;  and  in  case  he  refuses  so  to  do,  then  the  amount  of  his 
certified  check  shall  be  declared  forfeited  to  the  city,  and  shall  be  collected 
and  paid  into  its  general  fund,  and  all  bonds  so  forfeited  shall  be  prose- 
cuted and  the  amount  thereon  collected  paid  into  such  fund.  Notice  of  the 
awards  of  the  contracts  shall  be  published  and  posted  in  the  same  manner 
as  hereinbefore  provided  for  the  posting  of  proposals  for  said  work.  [Amend- 
ment approved  March  9,  1S93,  statutes  1893,  p.  91.] 

SECTION  47.  After  such  contract  has  been  awarded  and  entered  into,  the 
clerk  of  the  city  council  shall  certify  to  the  city  council  that  fact,  together 
with  the  total  amount  of  the  cost  of  the  same,  whereupon  the  city  council 
shall  cause  to  be  forwarded  to  the  commissioners  a  copy  of  such  certificate; 
whereupon  such  commissioners  shall  proceed  to  assess  the  cost  of  doing 
such  work  upon  all  the  lots  and  land  lying  within  the  district  to  be  assessed, 
distributing  the  same  so  that  each  lot  will  be  assessed  for  its  proportion  of 
the  same,  according  to  the  benefits  it  receives  from  the  work,  and  in  the 
same  manner  in  which  the  damages  caused  by  the  change  of  grade  were 
assessed  upon  the  same.  Such  commissioners,  in  making  such  assessment, 
shall  show  the  total  amount  for  which  each  lot  or  tract  is  assessed,  in 
excess  of  all  benefits,  for  the  total  cost  of  changing  and  modifying  the 
grade  of  the  street,  as  well  as  the  regrading,  repaving,  sewering,  sidewalk- 
ing,  and  curbing  of  the  same,  and  costs  or  damages  connected  therewith. 
The  provisions  of  the  act  to  which  this  is  amendatory  in  regard  to  the 
mode  or  manner  of  the  assessment  of  the  cost  of  such  work  shall  not  apply 
to  the  work  herein  contemplated;  neither  shall  the  provisions  of  the  same 
in  regard  to  the  issuing  of  bonds  to  represent  the  cost  of  the  same,  nor  the 
provisions  in  regard  to  the  right  of  protest  against  the  work.  [Amendment 
approved  March  9,  1893,  statutes  1893,  p.  92.] 

SECTION  48.  The  clerk  of  said  city  council  shall  forward  to  the  street 
superintendent  of  the  city  a  certified  copy  of  the  report,  assessment,  and 
plat,  as  finally  confirmed  and  adopted  by  the  city  council.  Such  certified 
copy  shall  thereupon  be  the  assessment  roll,  the  cost  of  which  shall  be 
provided  for  by  the  commissioners,  as  a  portion  of  the  cost  of  the  proceed- 
ings therein.  Immediately  upon  receipt  thereof  by  the  street  superintend- 
ent, the  assessment  therein  contained  shall  become  due  and  payable,  and 


28a    STREET  WORK  LAW — STREET  IMPROVEMENT  ACT 

shall  be  a  lien  upon   all  the  property  contained  or  described  therein. 
[Amendment  approved  March  9,  1893,  statutes  1893,  p.  93.} 

SECTION  49.  The  superintendent  of  streets  shall  thereupon  give  notice, 
by  publication  for  ten  days  in  one  or  more  daily  newspapers  published  and 
circulated  in  said  city,  or  city  and  county,  or  two  successive  insertions  in  a 
weekly  or  semi-weekly  newspaper  so  published  and  circulated,  that  he  has 
received  said  assessment  roll,  and  that  all  sums  levied  and  assessed  in  said 
assessment  roll  are  due  and  payable  immediately,  and  that  the  payment 
of  said  sums  is  to  be  made  to  him  within  thirty  days  from  the  date  of 
the  first  publication  of  said  notice.  Said  notice  shall  also  contain  a  state- 
ment that  all  assessments  not  paid  before  the  expiration  of  said  thirty  days 
will  be  declared  to  be  delinquent,  and  that  thereafter  the  sum  of  five  per 
cent,  upon  the  amount  of  such  delinquent  assessment,  together  with  the  cost 
of  advertising  each  delinquent  assessment,  will  be  added  thereto.  When  pay- 
ment of  any  assessment  is  made  to  said  superintendent  of  streets,  he  shall 
write  the  word  "paid"  and  the  date  of  payment  opposite  the  respective 
assessment  so  paid,  and  the  name  of  the  persons  by  or  for  whom  said 
assessment  is  paid,  and  shall  give  a  receipt  therefor.  On  the  expiration  of 
said  thirty  days,  all  assessments  then  unpaid  shall  be  and  become  delin- 
quent, and  said  superintendent  of  streets  shall  certify  such  fact  at  the  foot 
of  said  assessment  roll,  and  shall  add  five  per  cent,  to  the  amount  of  each 
assessment  so  delinquent.  The  said  superintendent  of  streets  shall,  within 
five  days  from  the  date  of  such  delinquency,  proceed  to  advertise  the 
various  sums  delinquent,  and  the  whole  thereof,  including  the  cost  of 
advertising  which  last  shall  not  exceed  the  sum  cf  fifty  cents  for  each  lot, 
piece,  or  parcel  of  land  separately  assessed,  by  the  sale  of  the  assessed 
property  in  the  same  manner  as  is  or  may  be  provided  for  the  collection  of 
state  and  county  taxes ;  and  after  the  date  of  said  delinquency,  and  before 
the  time  of  such  sale  herein  provided  for,  no  assessment  shall  be  received 
unless  at  the  same  time  the  five  per  cent,  added  to  as  aforesaid,  together 
with  the  costs  of  advertising  then  already  incurred,  shall  be  paid  there- 
with. Said  list  of  delinquent  assessments,  with  a  notice  of  the  time  and 
place  of  sale  of  the  property  affected  thereby,  shall  be  published  daily  for 
•  five  days,  in  one  or  more  daily  newspapers  published  and  circulated  in 
such  city,  or  by  at  least  two  insertions  in  a  weekly  newspaper  so  published 
and  circulated  before  the  day  of  sale  for  such  delinquent  assessment.  Said 
time  of  sale  must  not  be  less  than  seven  days  from  the  date  of  the  first 
publication  of  said  delinquent  assessment  list,  and  the  place  must  be  in  or 
in  front  of  the  office  of  said  superintendent  of  streets.  All  property  sold 
shall  be  subject  to  redemption  for  one  year,  and  in  the  same  manner  as  in 
sales  for  delinquent  state  and  county  taxes;  and  the  superintendent  of 
streets  shall,  if  there  is  no  redemption,  make  and  deliver  to  the  purchaser 
at  such  sale  a  deed  conveying  the  property  sold,  and  may  collect  for  each 
certificate  fifty  cents,  and  for  each  deed  one  dollar.  All  provisions  of  the 
law  in  reference  to  the  sale  and  redemption  of  property,  for  delinquent 
state  and  county  taxes,  in  force  at  any  given  time,  shall  also  then,  as  far  as 
the  same  are  not  in  conflict  with  the  provisions  of  this  act,  be  applicable 


TtT  ^ecs  SO  to  51  as  amended 

March  9,  1893. 

to  the  sale  and  redemption  of  property  for  delinquent  assessments  hereun- 
der,  including  the  issuance  of  certificates  and  execution  of  deeds.  The 
deed  of  the  street  superintendent,  made  after  such  sale,  in  case  of  failure, 
to  redeem,  shall  be  prima  facie  evidence  of  the  regularity  of  all  proceed- 
ings hereunder,  and  of  title  in  the  grantee.  The  superintendent  of  streets 
shall  from  time  to  time  pay  over  to  the  city  treasurer  all  moneys  collected 
by  lii in  on  account  of  any  such  assessments.  The  city  treasurer  shall, 
upon  receipt  thereof,  place  the  same  in  a  separate  fund,  designating  each 
fund  by  the  name  of  the  street,  square,  lane,  alley,  court,  or  place  for  the 
change  of  grade  for  which  the  assessment  was  made.  Payments  shall  be 
made  from  said  fund  to  the  parties  entitled  thereto,  upon  warrants  signed 
by  the  commissioners  or  a  majority  of  them.  [Amendment  approved  March 
.'>,  7.W3,  statutes  1893,  p.  93.] 

SECTION  50.  When  sufficient  money  is  in  the  hands  of  the  city  treasurer,  in 
the  fund  voted  for  the  proposed  work  or  improvement,  to  pay  the  total  cost 
for  damages,  as  well  as  for  the  cost  of  doing  the  work,  and  all  other  expen- 
ses connected  therewith,  it  shall  be  the  duty  of  the  commissioners  to  notify 
the  owner,  possessor  or  occupant  of  the  premises  damaged,  and  to  whom 
damages  have  been  awarded,  that  a  warrant  has  been  drawn  for  the  pay- 
ment of  the  same,  which  can  be  received  at  the  office  of  such  commission- 
ers. Such  notification  may  be  made  by  depositing  a  notice,  postage  paid 
in  the  post  office  addressed  to  his  last  known  place  of  residence.  If,  after 
the  expiration  of  three  days  after  the  service  or  deposit  of  the  notice  in  the 
post  office  he  shall  not  have  applied  for  such  warrant,  the  same  shall  be 
drawn  and  deposited  with  the  city  treasurer,  to  be  delivered  to  him  upon 
di-mand.  [Amendment  approved  March  9,  1893,  statutes  '93,  p.  94.] 

Si.( TION  51.  If  the  owner  of  any  premises  damaged  neglects  or  refuses, 
for  ten  days  after  the  warrant  has  been  placed  in  the  hands  of  the  city 
treasurer,  subject  to  his  demand,  to  accept  the  same,  the  city  council  may 
cause  proceedings  to  be  commenced,  in  the  name  of  the  city,  to  condemn 
said  premises,  as  provided  by  law  under  the  right  of  eminent  domain.  The 
ordinance  or  resolution  of  intention  shall  be  conclusive  evidence  of  the 
necessity  of  the  same.  Such  proceedings  shall  have  precedence,  so  far  as 
the  business  of  the  court  will  permit,  and  any  judgment  for  damages  therein 
rendered  shall  be  payable  out  of  the  special  fund  in  the  treasury  for  that 
purpose.  At  any  time  after  the  trial  and  judgment  entered,  or  pending 
appeal,  the  court  may  order  the  city  treasurer  to  set  apart  in  the  city  treas- 
ury a  sufficient  sum  from  said  fund  to  answer  the  judgment,  and  thereupon 
may  authorize  or  order  the  municipality  to  proceed  with  the  proposed  work 
or  improvements.  In  case  of  a  deficiency  in  said  fund  to  pay  the  whole 
assessed  judgment  and  damages,  the  city  council  may,  in  its  discretion, 
order  the  balance  thereof  to  be  paid  out  of  the  general  fund  of  the  treasury, 
or  to  be  distributed  by  the  commissioners  over  the  property  assessed  by  a 
supplementary  assessment;  but  in  the  last  named  case,  in  order  to  avoid 
delay,  the  city  council  may  advance  such  balance  out  of  any  available  fund 
in  the  treasury,  and  reimburse  the  same  from  the  collection  of  assessments. 
The  treasurer  shall  pay  such  warrants  in  the  order  of  their  presentation; 


30a         STREET  WORK  LAW STREET    IMPROVEMENT    ACT 

provided,  that  warrants  for  damages  and  for  costs  of  performing  the  work 
shall  have  priority  over  warrants  for  charges  and  expenses,  and  the  treas- 
urer shall  see  that  sufficient  money  remains  in  the  fund  to  pay  all  warrants 
of  the  first  class  before  paying  any  of  the  second.  The  provisions  of  section 
one  thousand  two  hundred  and  fifty-one  of  the  Code  of  Civil  Procedure, 
requiring  the  payment  of  damages  within  thirty  days  after  the  entry  of 
judgment,  shall  not  apply  to  damages  rendered  in  proceedings  under  this 
act.  [Amendment  approved  March  9,  1893,  statutes  '93,  p.  95.] 

SECTION  52.  All  other  provisions  contained  in  the  act  to  which  this  is 
amendatory,  and  which  provisions  are  not  in  conflict  herewith,  shall  apply 
to  all  matters  herein  contained.  All  proceedings  in  any  work  or  improve- 
ment, such  as  is  provided  for  in  this  act,  already  commenced  and  now  in 
progress  under  another  act  now  in  force,  or  by  virtue  of  an  ordinance  or 
resolution  of  intention  heretofore  passed,  may,  from  any  stage  of  such  pro- 
ceedings already  commenced  and  now  in  progress,  be  continued  under  this 
act  by  resolution  of  the  city  council.  The  said  work  or  improvement  may 
then  be  conducted  under  the  provisions  of  this  act,  with  full  force  and  effect 
in  all  respects  from  the  stage  of  such  proceedings  at  and  from  which  such 
resolution  or  ordinance  shall  declare  the  intention  to  have  such  work  done 
or  improvement  cease  under  such  other  acts  or  ordinances  and  continued 
under  this  act ;  and  from  such  election  so  made  all  proceedings  theretofore 
had  are  hereby  ratified,  confirmed  and  made  valid,  and  it  shall  be  unneces- 
sary to  renew  or  conduct  over  again  any  proceedings  prior  to  the  passage  of 
this  act.  [Amendment  approved  March  9,  1893,  statutes  '93,  p.  95.] 

SECTION  53.  The  provisions  of  this  act  shall  be  liberally  construed  to 
permit  the  objects  thereof.  [Statutes  1893,  page  96.} 

[Section  53  was  amended  by  the  act  of  March  9, 1893,  statutes  1893,  p.  96.] 


Street  Improvement  Bond  tfct  of  1893. 


An  Act  to  provide  a  system  of  Street  Improvement  Bonds  to 
represent  certain  assessments  for  the  cost  of  street  work  and 
improvement  within  municipalities,  and  also  for  the  pay- 
ment  of  such  bonds. 

[Approved  February  27, 1893.] 

The  people  of  the  state  of  California,  represented  in  senate  and  assembly, 
do  enact  as  follows : 

SECTION  1.  Wherever  in  this  act  the  phrase  "Street  Work  Act"  is  used, 
it  means  and  shall  be  taken  to  mean  the  act  entitled  "An  act  to  provide 
for  work  upon  streets,  lanes,  alleys,  courts,  places  and  sidewalks,  and  for 
construction  of  sewers  within  municipalities,"  approved  March  eighteenth, 
eighteen  hundred  and  eighty-five,  and  all  acts  amendatory  thereof  or  sup- 
plementary thereto;  and  wherever  in  this  act  the  name  of  any  municipal 
body  or  officer  is  used,  or  any  word  or  phrase  is  used  which  is  not  herein 
expressly  defined,  it  means  and  shall  be  taken  to  mean  such  municipal 
body  or  officer,  or  word  or  phrase  as  the  same  is  expressly  denned  in  said 
street  work  act,  and  in  all  acts  amendatory  thereof  or  supplementary 
thereto.  [Statutes  1893,  page  38.] 

SECTION  2.  Whenever  the  city  council  of  any  municipality  in  this  state 
shall  find,  upon  estimates  of  the  city  engineer,  that  the  cost  of  any  pro- 
posed work  or  improvement  authorized  by  said  street  work  act  will  be 
greater  than  one  dollar  per  front  foot  along  each  line  of  the  street  so  pro- 
posed to  be  improved,  including  the  cost  of  intersection  work  assessable 
upon  said  frontage,  it  shall  have  the  power,  in  its  discretion,  to  determine 
that  serial  bonds  shall  be  issued  to  represent  the  cost  of  said  work  or 
improvement  in  the  manner  and  form  hereinafter  provided.  Said  serial 
bonds  shall  extend  over  a  period  not  to  exceed  ten  years  from  their  date, 
and  an  even  annual  proportion  of  the  principal  sum  thereof  shall  be  pay- 
able, by  coupon,  on  the  second  day  of  January  every  year  after  their  date, 
until  the  whole  is  paid,  and  the  interest  shall  be  payable  semi-annually, 
by  coupon,  on  the  second  days  of  January  and  July,  respectively,  of  each 
year,  at  the  rate  of  not  to  exceed  ten  per  cent,  per  annum  on  all  sums 
unpaid,  until  the  whole  of  said  principal  and  interest  are  paid.  Said 
bonds  and  interest  thereon  shall  be  paid  at  the  office  of  the  city  treasurer 
of  said  municipality,  who  shall  keep  a  fund  designated  by  the  name  of 
said  bonds,  into  which  he  shall  receive  all  sums  paid  him  for  the  principal 
of  said  bonds  and  the  interest  thereon,  and  from  which  he  shall  disburse 
such  sums  upon  the  presentation  of  said  coupons ;  and  under  no  circurn- 


32a  STREET  WORK  LAW BOND    ACT 

stances  shall  said  bonds  or  the  interest  thereon  be  paid  out  of  any  other  fund. 
Said  city  treasurer  shall  keep  a  register  in  his  office,  which  shall  show  the 
series,  number,  date,  amount,  rate  of  interest,  payee  and  indorsees  of  each 
bond,  and  the  number  and  amount  of  each  coupon  of  principal  or  interest 
paid  by  him,  and  shall  cancel  and  file  each  coupon  so  paid.  [Statutes  1893, 
p.  33.] 

SECTION  3.  When  said  city  council  shall  determine  that  serial  bonds 
shall  be  issued  to  represent  the  expenses  of  any  proposed  work  or  improve- 
ment under  said  street  work  act,  it  shall  so  declare  in  the  resolution  of 
intention  to  do  said  work,  and  shall  specify  the  rate  of  interest  which  they 
shall  bear.  The  like  description  of  said  bonds  shall  be  inserted  in  the. 
resolution  ordering  the  work,  in  the  resolution  of  award,  and  in  all  notices 
of  said  proceedings  required  by  said  street  work  act  to  be  either  posted  or 
published ;  and  also  a  notice  that  a  bond  will  issue  to  represent  each 
assessment  of  fifty  dollars  or  more  remaining  unpaid  for  thirty  days  after 
the  date  of  the  warrant,  or  five  days  after  the  decision  of  said  council  upon 
an  appeal,  and  describing  the  bonds,  shall  be  included  in  the  warrant  pro- 
vided for  in  section  nine  of  said  street  work  act.  [Statutes  1893,  p.  34.] 

SECTION  4.  After  the  full  expiration  of  thirty  days  from  the  date  of  the 
warrant,  or  if  an  appeal  be  taken  to  the  city  council,  as  provided  in  section 
eleven  of  said  street  work  act,  then  five  days  after  the  final  decison  of  said 
council,  and  after  the  street  superintendent  shall  have  recorded  the  return 
as  provided  in  section  10  of  the  same  act,  the  street  superintendent  shall  make 
and  certify  to  the  city  treasurer  a  complete  list  of  all  assessments  unpaid, 
which  amount  to  fifty  dollars  or  over  upon  any  assessment  or  diagram  num- 
ber ;  and  said  treasurer  shall  thereupon  make  out,  sign  and  issue  to  the  con- 
ractoror  his  assigns,  payee  of  the  warrant  and  assessment,  a  separate  bond, 
representing  upon  each  lot  or  parcel  of  land  upon  said  list  the  total  amount 
of  the  assessments  against  the  same,  as  thereon  shown.  And  if  said  lot  or 
parcel  of  land  is  described  upon  said  assessment  and  diagram  by  its  num- 
ber or  block,  or  both,  and  is  also  designated  by  its  number  or  block,  or 
both,  upon  the  official  map  of  said  municipality,  or  upon  any  map  on  file 
in  the  office  of  the  county  recorder  of  the  county  in  which  said  municipal- 
ity is  situated,  then  it  shall  be  in  said  bond  a  sufficient  description  of  said 
lot  or  parcel  of  land  to  designate  it  by  said  number  or  block,  or  both,  as  it 
appears  on  said  official  or  recorded  map.  Said  bond  shall  be  substantially 
in  the  following  form  : 

STREET    IMPROVEMENT    BOND. 

Series  (designating  it),  in  the  city  (or  other  form  of  the  municipality)  of 
(naming  it). 

$ ioo"  No. . 

Under  and  by  virtue  of  an  act  of  the  legislature  of  the  state  of  California 
(title  of  this  act),  I,  out  of  the  fund  for  the  above  designated  street 
improvement  bonds,  series  -  — — ,  will  pay  to  —  — ,  or  order,  the 
sum  of  —  — ($ —  — ),  with  interest  at  the  rate  of  —  —percent, 
per  annum,  all  as  is  hereinafter  specified,  and  at  the  office  of  the  — 
treasurer  of  the of ,  state  of  California.  This  bond  is 


SECTION    FOUR    OF    BOND    ACT  s93 


issued  to  represent  the  cost  of  certain  street  work  upon  -  ,  in  the 
-  of  -  ,  as  the  same  is  more  fully  described  in  assessment 
number  —  —  ,  issued  by  the  street  superintendent  of  said  —  —  , 
after  his  acceptance  of  said  work,  and  recorded  in  his  office.  Its  amount 
is  the  amount  assessed  in  said  assessment  against  the  lot  or  parcel'  of  land 
numbered  therein,  and  in  the  diagram  attached  thereto,  as  number  -  , 
and  which  now  remains  unpaid,  but  until  paid,  with  accrued  interest,  is  a 
first  lien  upon  the  property  affected  thereby,  as  the  same  is  described  herein, 
and  in  said  recorded  assessment  with  its  diagram,  to  wit:  the  lot  or  parcel 
of  land  in  said  —  —  of  —  —  ,  county  of  -  ,  state  of  California, 


This  bond  is  payable  exclusively  from  said  fund,  and  neither  the 
municipality  nor  any  officer  thereof  is  to  be  holden  for  payment  otherwise 

of  its  principal  or  interest.  The  term  of  this  bond  is years  from 

its  date,  and  at  the  expiration  of  said  time  the  whole  sum  then  unpaid 
shall  be  due  and  payable;  but  on  the  second  day  of  January  of  each  year 
after  its  date  an  even  annual  proportion  of  its  whole  amouut  is  due  and 
payable,  upon  presentation  of  the  coupon  therefor,  until  the  whole  is  paid, 
with  all  accrued  interest  at  the  rate  of  —  —  per  centum  per  annum. 
The  interest  is  payable  send-annually,  to  wit,  on  the  second  days  of  Jan- 
uary and  of  July  in  each  year  hereafter,  upon  presentation  of  the  coupons 
therefor,  the  first  of  which  is  for  the  interest  from  date  to  the  next  second 
day  of  —  — ,  and  thereafter  the  interest  coupons  are  for  semi-annual 

interest,  except  the  last,  which  is  for  interest  from  the  semi-annual  pay- 
ment next  preceding  and  to  the  date  of  the  final  maturity  of  this  bond. 
Should  default  be  made  in  the  annual  payment  upon  the  principal,  or  in 
any  payment  of  interest,  from  the  owner  of  said  lot  or  parcel  of  land,  or 
any  one  in  his  behalf,  the  holder  of  this  bond  is  entitled  to  declare  the 
whole  unpaid  amount  to  be  due  and  payable,  and  to  have  said  lot  or  par- 
cel of  land  advertised  and  sold  forthwith,  in  the  manner  provided  by  law 
for  sale  of  land  assessed  for  state  and  county  taxes  delinquent  in  the  pay- 
ment thereof. 

At  said of  ,  this day  of ,  in  the  year 

one  thousand hundred  and . 


City  Treasurer  of  the of 

Provided,  that  in  case  the  amount  of  unpaid  assessments  upon  any  lot 
or  parcel  of  land  shall  be  less  than  fifty  dollars,  then  the  same  shall  be 
collected  as  is  hereinbefore  provided  in  part  one  of  said  street  work  act. 

Prodded,  also,  that  if  any  person,  or  his  authorized  agent,  shall  at  any 
time  before  the  issuance  of  the  bond  for  said  assessments  upon  his  lot  or 
parcel  of  land,  present  to  the  city  treasurer  his  affidavit,  made  before  a 
competent  officer,  that  he  is  the  owner  of  a  lot  or  parcel  of  land  in  said 
list,  accompanied  by  the  certificate  of  a  searcher  of  records,  that  he  is  such 
owner  of  record,  and  with  such  affida"it  and  certificate,  such  person 
notifies  said  treasurer,  in  writing,  that  he  desires  no  bond  to  be  issued  for 
the  assessments  upon  said  lot  or  parcel  of  land,  then  no  such  bond  shall 


STREET  WORK  LAW — BOND    ACT 

be  issued  therefor,  and  the  pa)ree  of  the  warrant,  or  his  assigns,  shall 
retain  his  right  for  enforcing  collection,  as  if  said  lot  or  parcel  of  land  had 
not  been  so  listed  by  the  street  superintendent.  The  bonds  so  issued  by  said 
treasurer  shall  be  payable  to  the  party  to  whom  they  issue,  or  order,  and 
shall  be  serial  bonds,  as  is  hereinbefore  described,  and  shall  bear  interest 
at  the  rate  specified  in  the  resolution  of  intention  to  do  said  work.  They 
shall  have  annual  coupons  attached  thereto,  payable  in  annual  order,  on 
the  second  day  of  January  in  each  year  after  the  date  of  the  bond,  until 
all  are  paid,  and  each  coupon  shall  be  for  an  even  annual  proportion  of  the 
principal  of  the  bond.  They  shall  have  semi-annual  interest  coupons  thereto 
attached,  the  first  of  which  shall  be  payable  upon  the  second  day  of  Jan- 
uary or  July,  as  the  case  may  be,  next  after  its  date,  and  shall  be  for  the 
interest  accrued  at  that  time,  and  the  last  of  which  shall  be  for  the 
amount  of  interest  accruing  from  the  second  day  of  January  or  July,  as 
the  case  may  be,  next  preceding  the  maturity  of  said  bonds  to  the 
maturity  thereof.  The  city  treasurer  shall,  in  addition  to  his  other  duties- 
in  the  premises,  report  all  coupon  payments  of  principal  upon  said  bonds 
to  the  street  superintendent,  who  shall  forthwith  indorse  the  same  upon 
the  margin  of  the  record  of  the  assessment  to  the  credit  of  which  the  same 
is  paid,  and  said  assessment  shall  be  a  first  lien  upon  the  property  affected 
thereby,  until  the  bond  issued  for  the  payment  thereof,  and  the  accrued 
interest  thereon,  shall  be  fully  paid.  Said  bonds,  by  their  issuance,  shall 
be  conclusive  evidence  of  the  regularity  of  all  proceedings  thereto  under 
said  street  work  act  and  this  act,  previous  to  the  making  of  the  certified 
list  of  all  assessments  unpaid  to  the  amount  of  fifty  dollars  or  over  by  the 
street  superintendent,  to  the  city  treasurer,  and  of  the  validity  of  said  lien, 
up  to  the  date  of  said  list.  [Statutes  1893,  page  34.} 

SECTION  5  Whenever,  through  the  default  of  the  owner  of  any  lot  or 
parcel  of  land  to  represent  the  assessment  upon  which  such  bond  has  been 
issued,  any  payment,  either  upon  the  principal  or  of  the  interest,  shall 
not  be  made  when  the  same  is  due,  and  the  holder  of  the  bond  thereupon 
demands,  in  writing,  that  the  said  city  treasurer  proceed  to  advertise  and 
sell  said  lot  or  parcel  of  land,  as  herein  provided,  then  the  whole  bond,  or 
its  unpaid  remainder,  with  its  accrued  interest,  shall  become  due  and  pay- 
able immediately,  and  on  the  day  following  shall  become  delinquent;  and 
the  city  treasurer  shall  have,  and  shall  act  thereafter  with,  all  the  powers 
and  duties  of  the  tax  collector  in  the  collection  of  unpaid  state  and  county 
taxes,  and  shall  forthwith  proceed  to  advertise  and  sell  said  lot  or  parcel  of 
land  by  proceedings  in  all  respects  the  same  as  are  provided  by  law  for  the 
collection  of  delinquent  state  and  county  taxes.  All  such  provisions  and 
proceedings,  after  taxes  have  become  delinquent,  including  the  certificate 
of  sale,  the  right  of  redemption,  and  the  deed,  with  the  respective  costs 
thereof,  are  hereby  made  applicable  to  this  case.  [Statutes  1893,  p.  36.] 

SECTION  6.  Whenever  any  railroad  track  or  tracks  of  any  description 
exists  upon  any  street  or  streets  on  which  the  city  council  has  ordered 
word  to  be  done  or  improvements  made,  excepting  therefrom  such  por- 
tions as  is  required  by  law  to  be  kept  in  order  or  repair  by  any  person  or 
company  having  railroad  tracks  thereon,  the  said  council  may,  at  any  time 


SECTION    SIX    OF    BOND    ACT       fjU*  °*    35o 


thereafter,  order  such  person  or  company  to  perform  upon  said  excepted 
portion  the  work  or  improvements^  similar  in  all  respects  to  that  already 
ordered  to  be  performed  under  the  same  specifications  and  superintendence, 
with  the  same  materials,  within  the  same  time,  and  to  the  like  satisfaction 
and  acceptance.  Thereupon  it  shall  be  the  duty  of  the  clerk  of  said  council 
to  deliver  immediately  a  copy  of  such  order,  certified  by  him,  to  such  per- 
son or  company,  and  to  make  and  preserve  in  his  office  a  certificate  of  such 
delivery,  its  date,  and  upon  whom  made.  Should  such  person  or  company, 
for  thirty  days,  or  within  such  extension  of  time  as  the  city  council  may 
grant,  thereafter  refuse  or  neglect  to  make  or  have  made  such  work  or 
improvement  in  the  manner  or  time  ordered,  it  shall  be  the  duty  of  the 
city  council  to  have  such  work  or  improvement  performed,  and  such 
refusal  or  neglect  punished  in  the  manner  provided  by  law.  Within  fifteen 
days  after  receiving  the  certified  copy  of  said  order,  such  person  or  corn- 
puny  may  file  with  the  clerk  of  said  council  a  written  assumption  of  the 
performance  of  said  work  or  improvement,  according  to  the  order,  or  a 
request  to  the  council  to  have  such  work  or  improvement  performed,  for 
and  at  the  expense  oi  such  person  or  company,  in  the  manner  herein  pro- 
vided. The  failure  to  file  such  instrument  within  said  time  shall  be  taken 
ami  deemed  to  be  a  refusal  to  comply  with  the  ordsr.  Upon  reception  of 
said  assumption  of  the  direct  performance  of  said  work  or  improvement, 
the  city  council  shall  take  no  further  proceedings  in  the  matter,  unless 
such  person  or  company  neglects  or  fails  for  thin  y  days,  or  such  further 
time  as  the  council  may  grant,  to  comply  with  the  provisions  of  the  order- 
But  if  such  person  or  company  files  the  said  request  that  the  said  council 
have  such  work  or  improvement  performed,  or  fails  to  perform  said  work 
within  thirtv  days,  or  within  such  further  time  as  the  council  may  grant, 
then  said  city  council  may  pass  an  ordinance  of  intention  to  perform  said 
work,  which  ordinance  shall  specify  the  work  to  be  performed,  and  a 
statement  that  unless  within  thirty  days  after  the  recording  of  the  return 
of  the  warrant,  or  within  five  days  after  the  final  decision  of  the  council  on 
an  appeal,  the  said  person  or  company  shall  pay  the  cost  of  said  work,  or 
the  street  superintendent  of  said  city  shall  issue  bonds  to  represent  the  cost  of 
said  work,  stating  also  that  the  cost  of  said  work,  in  case  bonds  shall  issue, 
shall  be  paid  in  ten  yearly  installments,  and  also  the  rate  of  interest  (not 
to  exceed  ten  per  cent,  per  annum)  that  the  same  shall  bear.  The  subse- 
quent procedure  shall  be  as  provided  by  the  "street  work  act."  A  similar 
statement  shall  also  be  incorporated  in  all  notices  required  to  be  posted  or 
published  by  the  provisions  of  the  "street  work  act;"  also  in  the  ordinance 
or  resolution  ordering  the  work,  advertisement  for  proposals,  and  in  the 
contract.  Whenever  the  person  or  company  owning  any  such  railroad 
shall  not  have,  within  thirty  days  after  the  recording  of  the  return  of  the 
warrant,  or  within  five  days  after  the  final  decision  of  the  council  on  an 
appeal,  paid  the  cost  of  such  work,  the  street  superintendent  shall  issue  to 
the  contractor,  or  his  assigns,  bonds  for  the  amount  of  such  cost,  which 
shall  describe  the  franchise,  tracks,  and  roadbed  along  or  between  which 
said  work  has  been  performed,  and  describing  the  same  as  upon  the 
assessment  and  diagram,  giving  its  assessment  number.  Such  bonds  shall 


STREET   WORK    LAW — BOND   ACT 

also  describe  the  work  performed,  giving  the  total  amount  of  the  cost  of 
such  work,  the  name  of  the  owner  of  said  railroad,  the  number  of  install- 
ments in  which  the  cost  of  the  work  is  to  be  paid,  and  the  rate  of  interest 
which  the  deferred  payments  shall  bear.  Said  bonds  shall  be  in  sums  of 
not  less  than  one  hundred  dollars  or  more  than  one  thousand  dollars,  and 
shall  recite  that  the  total  amount  of  the  cost  of  such  work,  together  with 
the  interest  thereon,  as  represented  in  said  bonds,  is,  except  state,  county 
and  municipal  taxes,  a  first  lien  upon  all  the  track,  roadbed,  switches  and 
franchises  of  said  railroad  lying  within  the  corporate  limits  of  the  city  or 
town,  on  any  part  of  which  said  work  has  been  performed.  Said  street 
superintendent  shall  also  keep  a  record  of  such  bonds,  as  required  by  sec- 
tion eighteen  of  the  "street  work  act."  Whenever  bonds  have  been  issued, 
as  herein  provided,  the  same,  together  with  the  cost  of  such  work  and  the 
interest  thereon,  shall  be,  except  state,  county  or  municipal  taxes,  a  first 
lien  upon  all  the  tracks,  roadbed,  switches  and  franchises  of  said  railroad 
within  the  corporate  limits  of  the  city  or  town,  on  any  part  of  which  said 
work  has  been  performed.  Sections  four  and  five  of  this  act,  regarding  the 
form,  issuance  and  foreclosure  of  street  bonds  and  the  sale  of  property 
described  therein,  shall  apply  hereto,  except  that  the  work  required  to  be 
performed  by  the  treasurer  by  said  sections  shall  be  performed  by  the  street 
superintendent,  in  so  far  as  the  bonds  for  the  paving  of  railroads  are  con- 
cerned. None  of  the  provisions  of  the  "  street  work  act  "  in  regard  to  a 
protest  against  the  work  shall  apply  to  any  work  contemplated  by  this  sec- 
tion. All  provisions  of  the  "  street  work  act "  not  inconsistent  with  the 
provisions  hereof,  shall  apply  hereto.  [Statutes  '93, p.  36.] 

SECTION  7.  The  term  "city  treasurer,"  as  used  in  this  act,  shall  be  held 
to  mean  and  include  any  person  who,  under  whatever  name  or  title,  is  the 
custodian  of  the  funds  of  the  municipality.  [Statutes  '93, p.  38.] 

SECTION  8.  The  act  entitled  "An  act  to  amend  an  act  entitled  'An  act  to 
provide  for  work  upon  streets,  lanes,  alleys,  courts,  places  and  sidewalks, 
and  for  construction  of  sewers  within  municipalities,'  approved  March 
eighteenth,  eighteen  hundred  and  eighty-five,  by  adding  thereto  an  addi- 
tional part,  numbered  four,  consisting  of  sections  thirty-eight,  thirty-nine, 
forty,  forty-one,  forty-two,  forty-tnree  and  forty-four,  relative  to  a  system 
of  street  improvement  bonds,"  approved  March  seventeenth,  eighteen  hun- 
dred and  ninety-one,  is  hereby  repealed ,  except  as  to  any  and  all  proceed- 
ings hitherto  commenced  thereunder,  which  proceedings  may  be  completed 
and  have  full  force  as  is  therein  provided.  [Statutes  '93,  p.  38.] 

SECTION  9.  This  act  shall  take  effect  and  become  of  force  from  and  after 
its  passage.  [Statutes  '93,  p.  38.] 


Street  Opening  M  of  Inarch  6,  1889, 


An  Act  to  provide  for  laying  out,  opening,  extending,  widening, 
straightening,  or  closing  up  in  ivhole  or  in  part  any  street, 
square,  lane,  alley,  court,  or  place  within  municipalities,  and 
to  condemn  and  acquire  any  and  all  land  and  property  neces^ 
sary  or  convenient  for  that  purpose. 

[Approved  March  6,  1889,  statutes  1889,  p.  70.] 

The  people  of  the  state  of  California,  represented  in  senate  and  assem- 
bly, do  enact  as  follows : 

SECTION  1.  Whenever  the  public  interest  or  convenience  may  require, 
the  city  council  of  any  municipality  shall  have  full  power  and  authority  to 
order  the  opening,  extending,  widening,  straightening,  or  closing  up  in 
Whole  or  in  part  of  any  street,  square,  lane,  alley,  court,  or  place  within 
the  bounds  of  such  city,  and  to  condemn  and  acquire  any  and  all  land  and 
property  necessary  or  convenient  for  that  purpose.  [Statutes  1889,  p.  70.} 

SECTION  2.  Before  ordering  any  work  to  be  done  or  improvement  made 
which  is  authorized  by  section  one  of  this  act,  the  city  council  shall  pass  a 
resolution  declaring  its  intention  to  do  so,  describing  the  work  or  improve- 
ment, and  the  land  deemed  necessary  to  be  taken  therefor,  and  specifying 
the  exterior  boundaries  of  the  district  of  lands  to  be  affected  or  benefited 
by  said  work  or  improvement,  and  to  be  assessed  to  pay  the  damages,  cost 
and  expenses  thereof.  [Statutes  '89,  p.  70.] 

SECTION  3.  The  street  superintendent  shall  then  cause  to  be  conspicu- 
ously posted  along  the  line  of  said  contemplated  work  or  improvement,  at 
not  more  than  three  hundred  feet  in  distance  apart,  but  not  less  than  three 
in  all,  notices  of  the  passage  of  said  resolution.  Said  notice  shall  be  headed, 
"Notice  of  public  work,"  in  letters  not  less  than  one  inch  in  length,  shall 
be  in  legible  characters,  state  the  fact  of  passage  of  the  resolution,  its  date, 
and,  briefly,  the  work  or  improvement  proposed,  and  refer  to  the  resolution 
for  further  particulars.  He  shall  also  cause  a  notice,  similar  in  substance, 
to  be  published  for  a  period  of  ten  days  in  one  or  more  daily  newspapers 
published  and  circulated  in  said  city,  and  designated  by  said  city  council ; 
or,  if  there  is  no  daily  newspaper  so  published  and  circulated  in  said  city, 
then  by  four  successive  insertions  in  a  weekly  or  semi- weekly  newspaper  so 
published,  circulated  and  designated.  [Statutes  '89,  p.  70.] 


38a  STREET  WORK  LAW^-STREET    OPENING    ACT 

SECTION  4.  Any  person  interested  objecting  to  said  work  or  improvement, 
or  to  the  extent  of  the  district  of  lands  to  be  affected  or  benefited  by  said 
work  or  improvement,  and  to  be  assessed  to  pay  the  cost  and  expenses 
thereof,  may  make  written  objections  to  the  same  within  ten  days  after  the 
expiration  of  the  time  of  the  publication  of  said  notice,  which  objection 
shall  be  delivered  to  the  clerk  of  the  city  council,  who  shall  indorse  thereon 
the  date  of  its  reception  by  him,  and  at  the  next  meeting  of  the  city  coun- 
cil after  the  expiration  of  said  ten  days,  lay  said  objections  before  said  city 
council,  which  shall  fix  a  time  for  hearing  said  objections  not  less  than  one 
week  thereafter.  The  city  clerk  shall  thereupon  notify  the  persons  making 
such  objections,  by  depositing  a  notice  thereof  in  the  post  office  of  said  city, 
postage  prepaid,  addressed  to  such  objector.  [Statutes  '89,  p.  70.} 

SECTION  5.  At  the  time  specified  or  to  which  the  hearing  may  be 
adjourned,  the  said  city  council  shall  hear  the  objections  urged  and  pass 
upon  the  same,  and  its  decision  shall  be  final  and  conclusive.  If  such 
objections  are  sustained,  all  proceedings  shall  be  stopped,  but  proceedings 
may  be  again  commenced  at  any  time  by  giving  notice  of  intention  to  do 
said  work  or  make  said  improvement.  If  such  objection  is  overruled  by 
the  city  council,  the  proceedings  shall  continue  the  same  as  if  such  objec- 
tion had  not  been  made.  At  the  expiration  of  the  time  prescribed  during 
which  objections  to  said  work  or  improvement  may  be  made,  if  no  objec- 
tions shall  have  been  made,  or  if  an  objection  shall  have  been,  and  said 
council,  after  hearing,  shall  have  overruled  the  same,  the  city  council  shall 
be  deemed  to  have  acquired  jurisdiction  to  order  any  of  the  work  to  be 
done,  or  improvements  to  be  made,  which  is  authorized  by  section  one  of 
this  act.  [Statutes  '89,  p.  71.} 

SECTION  6.  Having  acquired  jurisdiction,  as  provided  in  the  preceding 
section,  the  city  council  shall  order  said  work  to  be  done,  and  unless  the 
proposed  work  is  for  closing  up,  and  it  appears  that  no  assessment  is  neces- 
sary, shall  appoint  three  commissioners  to  assess  benefits  and  damages  and 
have  general  supervision  of  the  proposed  work  or  improvement  until  the 
completion  thereof  in  compliance  with  this  statute.  For  their  services 
they  shall  receive  such  compensation  as  the  city  council  may  determine 
from  time  to  time ;  provided,  that  such  compensation  shall  not  exceed  two 
hundred  dollars  per  month  each,  nor  continue  more  than  six  months, 
unless  extended  by  order  of  the  city  council.  Such  compensation  shall  be 
added  to  and  be  chargeable  as  a  part  of  the  expenses  of  the  work  or 
improvement.  Each  of  said  commissioners  shall  file  with  the  clerk  of  the 
city  council  an  affidavit,  and  a  bond  to  the  state  of  California  in  the  sum  of 
five  thousand  dollars,  to  faithfully  perform  the  duties  of  his  office.  The 
city  council  may  at  any  time  remove  any  or  all  of  said  commissioners  for 
cause,  upon  reasonable  notice  and  nearing,  and  may  fill  any  vacancies 
occurring  among  them  for  any  cause.  [Statutes  '89,  page  71.} 

SECTION  7.  Said  commissioners  shall  have  power  to  employ  such  assist- 
ance, legal  or  otherwise,  as  they  may  deem  necessary  and  proper;  also,  to 
rent  an  office  and  provide  such  maps,  diagrams,  plans,  books,  stationery, 


SECTIONS    SIX-NINE,  STREET  OPENING  ACT     *Je March*?  1889*  ACt 

fuel,  lights,  postage,  expressage,  and  incur  such  incidental    expenses  as 
they  may  deem  necessary.     [Statutes  '89,  p.  71.} 

SECTION  8.  All  such  charges  and  expenses  shall  be  deemed  as  expenses 
of  said  work  or  improvement,  and  be  a  charge  only  upon  the  funds  devoted 
to  the  particular  work  or  improvement  as  provided  hereinafter.  All  pay- 
ments, as  well  for  the  land  and  improvements  taken  or  damaged,  as  for 
the  charges  and  expenses,  shall  be  paid  by  the  city  treasurer,  upon  war- 
rants drawn  upon  said  fund  from  time  to  time,  signed  by  said  commission- 
ers, or  a  majority  of  them.  All  such  warrants  shall  state  whether  they  are 
issued  for  land  or  improvements  taken  or  damaged,  or  for  charges  and 
expenses,  and  that  the  demand  is  payable  only  out  of  the  money  in  said 
fund,  and  in  no  event  shall  the  city  be  liable  for  the  failure  to  collect  any 
assessment  made  by  virtue  hereof,  nor  shall  said  warrant  be  payable  outo 
any  other  fund,  nor  a  claim  against  the  city.  [Statutes  '89,  p.  71.] 

SECTION  9.  Said  commissioners  shall  proceed  to  view  the  lands  described 
in  the  resolution  of  intention,  and  may  examine  witnesses  on  oath,  to  be 
administered  by  any  one  of  them.  Having  viewed  the  land  to  be  taken, 
and  the  improvements  affected,  and  considered  the  testimony  presented, 
they  shall  proceed  with  all  diligence  to  determine  the  value  of  the  land 
and  the  damage  to  improvements  and  property  affected,  and  also  the 
amount  of  the  expenses  incident  to  said  work  or  improvement,  and  having 
determined  the  same,  shall  proceed  to  assess  the  same  upon  the  district  of 
lands  declared  benefited,  the  exterior  boundaries  of  which  were  fixed  by 
the  resolution  of  intention  provided  for  by  section  2  hereof.  Such  assess- 
ment shall  be  made  upon  the  lands  within  said  district  in  proportion  to  the 
benefit  to  be  derived  from  said  work  or  improvement,  so  far  as  the  said 
commissioners  can  reasonably  estimate  the  same,  including  in  such  esti- 
mate the  property  of  any  railroad  company  within  said  district,  if  such 
there  be.  [Statutes  '89,  p.  72.} 

SECTION  10.  Said  commissioners  having  made  their  assessment  of  bene- 
fits and  damage,  shall,  with  all  diligence,  make  a  written  report  thereof  to 
the  city  council,  and  shall  accompany  their  report  with  a  plat  of  the  assess- 
ment district  showing  the  land  taken  or  to  be  taken  for  the  work  or 
improvement,  and  the  lands  assessed,  showing  the  relative  location  of  each 
district,  block,  lot,  or  portion  of  lot,  and  its  dimensions,  so  far  as  the  com- 
missioners can  reasonably  ascertain  the  same.  Each  block  and  lot,  or  por- 
tion of  lot,  taken  or  assessed,  shall  be  designated  and  described  in  said 
plat  by  an  appropriate  number,  and  a  reference  to  it  by  such  descriptive 
number  shall  be  a  sufficient  description  of  it  in  any  suit  entered  to  con- 
demn, and  in  all  respects.  When  the  report  and  plat  are  approved  by  the 
city  council,  a  copy  of  said  plat,  appropriately  designated,  shall  be  filed  by 
the  clerk  thereof  in  the  office  of  the  recorder  of  the  county.  [Statutes  1889, 
page  72.} 

SECTION  11.  Said  report  shall  specify  each  lot,  subdivision,  or  piece  of 
property  taken  or  injured  by  the  widening  or  other  improvement,  or 
assessed  therefor,  together  with  the  name  of  the  owner  or  claimants 


40a  STREET  WORK  LAW STREET    OPENING  ACT 

thereof,  or  of  persons  interested  therein  as  lessees,  incumbrancers,  or 
otherwise,  so  far  as  the  same  are  known  to  such  commissioners,  and  the 
particulars  of  their  interest,  so  far  as  the  same  can  be  ascertained,  and  the 
amount  of  value  or  damage,  or  the  amount  assessed,  as  the  case  may  be. 
[Statutes  1889,  page  72.} 

SECTION  12.  If  in  any  case  the  commissioners  find  that  conflicting  claims 
of  title  exist,  or  shall  be  in  ignorance  or  doubt  as  to  the  ownership  of  any 
lot  of  land,  or  of  any  improvements  thereon,  or  of  any  interest  therein,  it 
shall  be  set  down  as  belonging  to  unknown  owners.  Error  in  the  designa- 
tion of  the  owner  or  owners  of  any  land  or  improvements,  or  of  the  partic- 
ulars of  their  interest,  shall  not  affect  the  validity  of  the  assessment  or  of 
the  condemnation  of  the  property  to  be  taken.  [Statutes  1889,  page  73.} 

SECTION  13.  Said  report  and  plat  shall  be  filed  in  the  clerk's  office  of  the 
city  council,  and  thereupon  the  clerk  of  said  city  council  shall  give  notice 
of  such  filing  by  publication  for  at  least  ten  days  in  one  or  more  daily 
newspapers  published  and  circulated  in  said  city ;  or  if  there  be  no  daily 
paper,  by  three  successive  insertions  in  a  weekly  or  semi-weekly  newspa- 
per so  published  and  circulated.  Said  notice  shall  also  require  all  persons 
interested  to  show  cause,  if  any,  why  such  report  should  not  be  confirmed, 
before  the  city  council,  on  or  before  a  day  fixed  by  the  clerk  thereof,  and 
stated  in  said  notice,  which  day  shall  not  be  less  than  thirty  days  from  the 
first  publication  thereof.  [Statutes  1889,  page  73.} 

SECTION  14.  All  objections  shall  be  in  writing  and  filed  with  the  clerk 
of  the  city  council,  who  shall,  at  the  next  meeting  after  the  day  fixed  in 
the  notice  to  show  cause,  lay  the  said  objections,  if  any,  before  the  city 
council,  which  shall  fix  a  time  for  hearing  the  same,  of  which  the  clerk 
shall  notify  the  objectors  in  the  same  manner  as  objectors  to  the  original 
resolution  of  intention  at  the  time  set,  or  at  such  other  time  as  the  hear- 
ing may  be  adjourned  to,  the  city  council  shall  hear  such  objections  and 
pass  upon  the  same;  and  at  such  time,  or  if  there  be  no  objections  at  the 
first  meeting  after  the  day  set  in  such  order  to  show  cause,  or  such  other 
time  as  may  be  fixed,  shall  proceed  to  pass  upon  such  report,  and  may 
confirm,  correct,  or  modify  the  same,  or  may  order  the  commissioners  to 
make  a  new  assessment,  report,  and  plat,  which  shall  be  filed,  notice  given, 
and  hearing  had  as  in  the  case  of  an  original  report.  [Statutes  18S9,page73.] 

SECTION  15.  The  clerk  of  said  city  council  shall  forward  to  the  street 
superintendent  of  the  city  a  certified  copy  of  the  report,  assessment  and 
plat,  as  finally  confirmed  and  adopted  by  the  city  council.  Such  certified 
copy  shall  thereupon  be  the  assessment  roll.  Immediately  upon 
receipt  thereof  by  the  street  superintendent  the  assessment  therein  con- 
tained shall  become  due  and  payable,  and  shall  be  a  lien  upon  all  the  prop- 
erty contained  or  described  therein.  [Statutes  1889,  page  73.] 

SECTION  16.  The  superintendent  of  streets  shall  thereupon  give  notice 
by  publication  for  ten  days  in  one  or  more  daily  newspapers  published  and 
circulated  in  such  city,  or  city  and  county,  or  by  two  successive  insertions 
in  a  weekly  or  semi-wreekly  newspaper  so  published  and  circulated,  that 
he  has  received  said  assessment  roll,  and  that  all  sums  levied  and  assessed 


STREET    OPENING    ACT    OF    1889  March^sS ACt  °f        4la 

in  said  assessment  roll  are  due  and  payable  immediately,  and  that  the 
payment  of  said  sums  is  to  be  made  to  him  within  thirty  days  from  the 
date  of  the  first  publication  of  said  notice.  Said  notice  shall  also  contain 
a  statement  that  all  assessments  not  paid  before  the  expiration  of  said 
thirty  days  will  be  declared  to  be  delinquent,  and  that  thereafter  the  sum 
of  five  per  cent,  upon  the  amount  of  each  delinquent  assessment,  together 
with  the  cost  of  advertising  each  delinquent  assessment,  will  be  added 
thereto.  When  payment  of  any  assessment  is  made  to  said  superintendent 
of  streets  he  shall  write  the  word  "paid,"  and  the  date  of  payment,  oppo- 
site the  respective  assessment  so  paid,  and  the  names  of  persons  by  or  for 
whom  said  assessment  is  paid,  and  shall,  if  so  required,  give  a  receipt 
therefor.  On  the  expiration  of  said  thirty  days  all  assessments  then 
unpaid  shall  be  and  become  delinquent,  and  said  superintendent  of  streets 
shall  certify  such  fact  at  the  foot  of  said  assessment  roll,  and  shall  add  five 
per  cent,  to  the  amount  of  each  assessment  so  delinquent.  The  said  super- 
intendent of  streets  shall,  within  five  days  from  the  date  of  said  delin- 
quency, proceed  to  advertise  and  collect  the  various  sums  delinquent,  and 
the  whole  thereof,  including  the  cost  of  advertising,  which  last  shall  not 
exceed  the  sum  of  fifty  cents  for  each  lot,  piece,  or  parcel  of  land  separately 
assessed,  by  the  sale  of  the  assessed  property  in  the  same  manner  as  is  or 
may  be  provided  for  the  collection  of  state  and  county  taxes;  and  after 
the  date  of  said  delinquency,  and  before  the  time  of  such  sale  herein  pro- 
vided for.  n<>  assessment  shall  be  received  unless  at  the  same  time  the  five 
per  cent,  added  thereto,  as  aforesaid,  together  with  the  costs  of  advertising 
then  already  incurred,  shall  be  paid  therewith.  Said  list  of  delinquent 
iments  shall  be  published  daily  for  five  days  in  one  or  more  daily 
newspapers  published  and  circulated  in  such  city,  or  by  at  least  one  inser- 
tion in  a  weekly  newspaper  so  published  and  circulated,  before  the  day  of 
sale  of  such  delinquent  assessment.  Said  time  of  sale  must  not  be  less 
than  seven  days  from  the  date  of  the  first  publication  of  said  delinquent 
assessment  list,  and  the  place  must  be  in  or  in  front  of  the  office  of  said 
superintendent  of  streets.  All  property  sold  shall  be  subject  to  redemp- 
tion in  the  same  time  and  manner  as  in  sales  for  delinquent  state  and 
county  taxes ;  and  the  superintendent  of  streets  may  collect  for  each  cer- 
tificate fifty  cents,  and  for  each  deed  one  dollar.  All  provisions  of  the 
law,  in  reference  to  the  sale  and  redemption  of  property  for  delinquent 
state  and  county  taxes  in  force  at  any  given  time,  shall  also  then,  so  far  as 
the  same  are  not  in  conflict  with  the  provisions  of  this  act,  be  applicable 
to  the  sale  and  redemption  of  property  for  delinquent  assessments  here- 
under,  including  the  issuance  of  certificates  and  execution  of  deeds.  The 
deed  of  the  street  superintendent  made  after  such  sale,  in  case  of  failure  to 
redeem,  shall  be  prima  facie  evidence  of  the  regularity  of  all  proceedings 
hereunder,  and  of  title  in  the  grantee.  It  shall  be  conclusive  evidence  of 
the  necessity  of  taking  or  damaging  the  lands  taken  or  damaged,  and  of 
the  correctness  of  the  compensation  awarded  therefor.  The  superintend- 
ent of  streets  shall,  from  time  to  time,  pay  over  to  the  city  treasurer  all 
moneys  collected  by  him  on  account  of  any  such  assessments.  The  city 
treasurer  shall,  upon  receipt  thereof,  place  the  same  in  a  separate  fund, 


STREET    WORK    LAW STREET    OPENING    ACT 

designating  such  funds  by  the  name  of  the  street,  square,  lane,  alley, 
court,  or  place  for  the  widening,  opening,  or  other  improvement  of  which 
the  assessment  was  made.  Payments  shall  be  made  from  said  fund  to  the 
parties  entitled  thereto  upon  warrants  signed  by  the  commissioners,  or  a 
majority  of  them.  [Statutes  1889,  page  73.} 

SECTION  17.  When  sufficient  money  is  in  the  hands  of  the  city  treasurer, 
in  the  fund  devoted  to  the  proposed  work  or  improvement,  to  pay  for  the 
land  and  improvements  taken  or  damaged,  and  when  in  the  discretion  of 
the  commissioners,  or  a  majority  of  them,  the  time  shall  have  come  to 
make  payments,  it  shall  be  the  duty  of  the  commissioners  to  notify  the 
owner,  possessor,  or  occupant  of  any  land  or  improvements  thereon  to 
whom  damages  shall  have  been  awarded,  that  a  warrant  has  been  drawn 
for  the  payment  of  the  same,  and  that  he  can  receive  such  warrant  at  the 
office  of  such  commissioners  upon  tendering  a  conveyance  of  any  property 
to  be  taken;  such  notification,  except  in  the  case  of  unknown  owners,  to 
be  made  by  depositing  a  notice,  postage  paid,  in  the  post  office,  addressed 
to  his  last  known  place  of  abode  or  residence.  If  at  the  expiration  of 
thirty  days  after  the  deposit  of  such  notice,  he  should  not  have  applied  for 
such  warrant,  and  tendered  a  conveyance  of  the  land  to  be  taken,  the 
warrant  so  drawn  shall  be  deposited  with  the  county  treasurer,  and  shall 
be  delivered  to  such  owner,  possessor,  or  occupant,  upon  tendering  a  con- 
veyance as  aforesaid,  unless  judgment  of  condemnation  shall  be  had,  when 
the  same  shall  be  canceled.  [Statutes  1889,  page  75.] 

SECTION  18.  If  any  owner  of  land  to  be  taken  neglects  or  refuses  to  accept 
the  warrant  drawn  in  his  favor  as  aforesaid,  or  objects  to  the  report  as  to 
the  necessity  of  taking  his  land,  the  commissioners,  with  the  approval  of 
the  city  council,  may  cause  proceedings  to  be  taken  for  the  condemnation 
thereof,  as  provided  by  law  under  the  right  of  eminent  domain.  The  com- 
plaint may  aver  that  it  is  necessary  for  the  city  to  take  or  damage  and 
condemn  the  said  lands,  or  an  easement  therein,  as  the  case  may  be,  with- 
out setting  forth  the  proceedings  herein  provided  for,  and  the  resolution  and 
ordinance  ordering  said  work  to  be  done  shall  be  conclusive  evidence  of 
such  necessity.  Such  proceeding  shall  be  brought  in  the  name  of  the 
municipality,  and  have  precedence  so  far  as  the  business  of  the  court  will 
permit;  and  any  judgment  for  damages  therein  rendered  shall  be  payable 
out  of  such  portion  of  the  special  fund  as  may  remain  in  the  treasury,  so 
far  as  the  same  can  be  applied.  At  any  time  after  trial  and  judgment 
entered,  or  preceding  an  appeal,  the  court  may  order  the  city  treasurer  to 
set  apart  in  the  city  treasury  a  sufficient  sum  from  the  fund  appropriated 
to  the  particular  improvement  to  answer  the  judgment  and  all  damages, 
and  thereupon  may  authorize  and  order  the  municipality  to  enter  upon  the 
land  and  proceed  with  the  proposed  work  and  improvement.  In  case  of  a 
deficiency  in  said  fund  to  pay  the  whole  of  such  judgment  and  damages, 
the  city  council  may,  in  their  discretion,  order  the  balance  thereof  to  be 
paid  out  of  the  general  fund  of  the  treasury  or  to  be  distributed  by  the 
commissioners. over  the  property  assessed  by  a  supplementary  assessment; 
but  in  the  last  named  case,  in  order  to  avoid  delay,  the  city  council  may 
advance  such  balance  out  of  any  appropriate  fund  in  the  treasury,  and 


STREET  OPENING  ACT  OP  1889 

reimburse  the  same  from  the  collections  of  the  assessment.  Pending  the 
collection  and  payment  of  the  amount  of  the  judgment  and  damages,  the 
court  may  order  such  stay  of  proceedings  as  may  be  necessary.  [Statutes 
1889,  page  75.] 

SECTION  19.  The  treasurer  shall  pay  such  warrants  out  of  the  appropri- 
ate fund,  and  not  otherwise,  in  the  order  of  their  presentation;  provided, 
that  warrants  for  land  or  improvements  taken  or  damaged  shall  have 
priority  over  warrants  for  charges  and  expenses,  and  the  treasurer  shall 
see  that  sufficient  money  is  and  remains  in  the  fund  to  pay  all  warrants  of 
the  first  class  before  paying  any  of  the  second.  [Statutes  1889,  page  76.] 

SECTION  20.  If  after  the  sale  of  the  property  for  delinquent  assessments 
there  should  be  a  deficiency,  and  there  should  be  unreasonable  delay  in 
collecting  the  same,  or  if  for  the  purpose  of  equalizing  the  assessments, 
supplying  a  deficiency,  or  for  any  cause  it  appears  desirable,  the  commis- 
sioners may  so  report  to  the  city  council,  who  may  order  them  to  make  a 
supplementary  assessment  and  report  the  same  in  manner  and  form  as  the 
original,  and  subject  to  the  same  procedure.  If  by  reason  of  such  supple- 
mentary assessment,  or  for  any  cause,  there  should  be  at  any  time  a  sur- 
plus, the  city  council  may  appropriate  the  same  and  declare  a  dividend 
pro  rata  to  the  parties  paying  the  same,  and  they,  upon  demand,  shall 
have  the  right  to  have  the  amount  of  such  pro  rata  dividends  refunded  to 
them,  or  credited  upon  any  subsequent  assessment  for  taxes  made  against 
said  parties  in  favor  of  said  city.  [Statutes  1889,  page  76.] 

SIXTION  21.  If  any  title  attempted  to  be  acquired  by  virtue  of  this  act 
shall  be  found  to  be  defective  from  any  cause,  the  city  council  may  again 
institute  proceedings  to  acquire  the  cause  as  in  this  act  provided,  or  other- 
wise, or  may  authorize  the  commissioners  to  purchase  the  same  and 
include  the  cost  thereof  in  a  supplementary  assessment  as  provided  in  the 
last  section.  {Statutes  1889,  page  76.] 

SECTION  22.  If  the  city  council  deem  it  proper  that  the  boundaries  of 
the  districts  of  lands  to  be  affected  and  assessed  to  pay  the  damages,  cost, 
and  expenses  of  any  work  or  improvement  under  this  act,  shall  include 
the  whole  city,  then  the  commissioners  appointed  shall  proceed  in  a  sum- 
mary manner  to  purchase  the  lands  to  be  taken  or  condemned  from  the 
OWIKTS  and  claimants  thereof.  If  said  commissioners  and  the  owners  and 
claimants  cannot  agree  upon  the  price  to  be  paid  for  said  lands,  they  shall 
proceed  to  view  and  value  the  same,  and  shall  thereupon  make  a  summary 
report  to  the  city  council.  Upon  final  confirmation  of  the  report,  the 
city  council,  if  there  be  not  sufficient  money  available  in  the  city  treasury, 
shall  cause  the  cost  and  expenses  of  the  contemplated  public  improvement 
to  be  assessed  upon  the  whole  of  the  taxable  property  of  said  city,  and  to 
be  included  in  and  form  part  of  the  next  general  assessment  rol  of  said 
city,  and  with  like  effect  in  all  respects  as  if  the  same  formed  a  part  of  the 
city,  state  and  county  taxes;  and  when  the  same  shall  have  been  collected 
the  said  city  council  shall  cause  the  land  required  to  be  paid  for  or  the 
value  thereof  tendered,  and  the  said  contemplated  public  improvement 
to  be  forthwith  made  and  completed.  All  the  provisions  of  the  preceding 

f^     *"  OF  THE  >v 

(UNIVERSITY) 
*--~^S 


44a  STREET  WORK  LAW STREET  OPENING  ACT 

sections  not  in  conflict  with  this  section  shall  be  applicable  thereto.  [Stat- 
utes 1889,  page  76.} 

SECTION  23.  1.  The  words  "work"  and  "improvement,"  as  used  in 
this  act,  shall  include  all  work  mentioned  in  section  one  of  this  act. 

#.  In  case  there  is  no  daily  or  weekly  or  semi-weekly  newspapers 
printed  and  circulated  in  the  city,  then  such  notices  as  are  herein  required 
to  be  published  in  a  newspaper  shall  be  posted  and  kept  posted  for  the 
length  of  time  required  herein  for  the  publication  of  the  same  in  a  weekly 
newspaper,  in  three  of  the  most  public  places  in  such  city.  Proof  of  the 
publication  or  posting  of  any  notice  provided  for  herein  shall  be  made  by 
affidavit  of  the  owner,  publisher  or  clerk  of  the  newspaper,  or  of  the  poster 
of  the  notice. 

3.  The  word  "municipality"  and  the  word  "city7'  shall  be  understood 
and  so  construed  as  to  include  all  corporations  heretofore  organized  and 
now  existing,  or  hereafter  organized,  for  municipal  purpose. 

4.  The  term   street  superintendent  and  superintendent  of  streets,  as 
used  in  this  act,  shall  be  understood  and  so  construed  as  to  include,  and 
are  hereby  declared  to  include,  any  person  or  officer  whose  duty  it  is, 
under  the  law,  to  have  the  care  or  charge  of   the  streets,  or  the  improve- 
ment thereof,  in  any  city.     In  all  those  cities  where  there  is  no  street 
superintendent  or  superintendent  of  streets,  the  city  council  thereof  is 
hereby  authorized  and  empowered  to   appoint  a  suitable  person  to  dis- 
charge the  duties  herein   laid   down  as  those  of  street  superintendent  or 
superintendent  of  streets ;  and  all  the  provisions  hereof  applicable  to  the 
street  superintendent  or  superintendent  of  streets  shall  apply  to  such  per- 
sons so  appointed. 

5.  The  term  "city  council"  is  hereby  declared   to  include  any  body  or 
board  which,  under  the  law,  is  the  legislative  department  of  the  govern- 
ment of  any  city. 

6.  The  term  "clerk"  and  "city  clerk,"  as  used  in  this  act,  is  hereby 
declared  to  include  any  person  or  officer  who  shall  be  clerk  of  said  city 
council. 

7.  The  term  "treasurer"  or  "city  treasurer,"  as  used  in  this  act,  shall 
include  any  person  or  officer  who  shall  have  charge  and  make  payment  of 
the  city  funds. 

8.  No  publications  or  notice  other  than  that  provided  for  in  this  act 
shall  be  necessary  to  give  validity  to  any  proceedings   had  thereunder. 
[Statute?  1889,  page  77.} 

SECTION  24.  The  proceedings  in  any  work  or  improvement,  such  as  is 
provided  for  in  this  act,  already  commenced  and  now  progressing  under 
any  other  act  now  in  force,  or  by  virtue  of  any  ordinance  passed  by  any 
city  council  or  board  of  supervisors  of  any  city,  county,  or  city  and  county, 
by  virtue  of  any  other  act  now  in  force,  'may,  from  any  stage  of  such  pro- 
ceedings already  commenced  and  now  progressing,  be  continued  under 
this  act  by  resolution  of  the  city  council.  The  said  work  or  improvement 
may  then  be  conducted  under  the  provisions  of  this  act  with  full  force  and 
effect  in  all  respects,  from  the  stage  of  such  proceedings  under  such  other 


STREET  OPENING  ACT  OF  1889       *&*&?** 

acts  or  ordinances  at  and  from  which  such  resolution  shall  declare  an 
election  or  intention  to  have  said  work  or  improvement  cease  under  such 
other  act  or  ordinance  and  continue  under  this  act;  and  from  such  elec- 
tion so  made,  all  proceeding  theretofore  had  under  such  other  act  or  ordi- 
nan ••<>  are  hereby  ratified,  confirmed,  and  made  valid,  and  it  shall  be 
unnecessary  to  renew  or  conduct  over  again  proceedings  had  under  such 
other  act  or  ordinance.  This  section  shall  not  apply  to  any  work  or 
improvement  proceedings  in  which  were  commenced  more  than  eighteen 
months  prior  to  the  passage  of  this  act.  {Statutes  1889,  page  77.] 

SKCTIOX  25.  The  provisions  of  this  act  shall  be  liberally  construed  to 
promote  the  objects  thereof.  This  act  shall  take  effect  and  be  in  force 
from  and  after  its  passage.  [Statutes  1889,  page  78.} 


APPENDIX. 

FORMS  USED  UNDER  THE  VROOMAN  ACT. 


NOTE— Those  parts  which  are  not  permanent  parts  of  any  similar  form,  such  as  dates 
descriptions,  etc.,  are  in  italics. 

No.  1.     RESOLUTION  OF  INTENTION. 

Resolution  of  Intention,  No.  735;  Resolved,  That  it  is  the  intention  of 
the  city  council  of  the  city  of  Lis  Angeles,  state  of  California,  to  order  the 
following  street  work  to  be  done,  in  the  said  city,  to  wit:  That  that  por- 
tion of  Hoover  street  in  said  city  from  the  south  curb  line  of  Sixteenth  street 
to  the  north  curb  line  of  Washington  street,  which  is  east  of  the  west  city  bound- 
ary, including  all  intersections  of  streets,  (excepting  such  portion  of  said 
street  and  intersections  as  are  required  by  law  to  be  kept  in  order  or  repair 
by  any  person  or  company  having  railroad  tracks  thereon,  and  also  except- 
ing such  portions  as  have  already  been  graded,  graveled,  and  accepted,)  be 
graaea  and  graveled  in  accordance  with  the  plans  and  profile  on  file  in  the 
office  of  i he  city  engineer  and  specifications  on  file  in  the  office  of  the  city 
clerk  of  the  city  of  Los  Angeles  for  graveled  streets,  said  specifications  being 
numbered  5. 

The  Los  Angeles  Herald,  a  daily  newspaper  published  and  circulated  in 
s:ii<l  r.ity,  is  hereby  designated  as  the  newspaper  in  which  this  resolution  of 
intenticn  and  notice  of  the  passage  thereof  shall  be  published  in  the  man- 
ner and  by  the  persons  required  by  law. 

The  superintendent  of  streets  of  said  city  is  hereby  directed  to  post 
notices  of  the  passage  of  this  resolution  in  the  manner  and  in  the  form 
required  by  law,  and  to  cause  a  similar  notice  to  be  published  for  six  days 
in  said  newspaper,  in  the  manner  required  by  law. 

The  city  clerk  of  said  city  is  hereby  directed  to  post  this  resolution  of 
intention  conspicuously  for  two  days  on  or  near  the  chamber  door  of  the 
council,  and  to  causa  the  same  to  be  published  by  two  insertions  in  the 
manner  required  by  law,  in  said  daily  newspaper. 

I  hereby  certify  that  the  foregoing  resolution  was  passed  by  the  city 
council  of  the  city  of  Los  Angeles  on  the  13th  day  of  November,  1893,  by  the 
following  vote : 

Ayes ;  Messrs.  Campbell,  Innes,  Munson,  Nickell,  Pessett,  and  president 
Teed. 

Xoes :  Messrs.  Rhodes  and  Strohm. 

C.  A.  LUCKENBACH, 

City  clerk  and  ex  officio  clerk  of  the  city  council  of  the  city  of  Los  Angeles. 


48a  STREET    WORK    LAW APPENDIX FORMS 

No.  2.    NOTICE  OF  PASSAGE  OF  RESOLUTION  OF  INTENTION. 

NOTICE   OF    STREET   WORK. 

Notice  is  hereby  given  that  on  Monday  the  13th  day  of  November,  A.  D. 
1895.  the  city  council  of  the  city  of  Los  Angeles  did,  at  its  meeting  on  said 
day,  adopt  a  resolution  of  intention,  numbered  1923  (new  series,)  to  order 
the  following  street  work  to  be  done,  to  wit : 

That  a  cement  sidewalk  six  feet  in  width  be  constructed  along  tlie  west  side  of 
Burlington  avenue,  in  said  city,  from  the  southerly  curb  line  of  Seventh  street 
to  the  northerly  curb  line  of  Ninth  street  (excepting  such  portions  of  said 
street  between  said  points  along  which  a  cement' or  asphalt  sidewalk  has 
been  constructed  and  accepted.)  said  sidewalk  to  be  constructed  in  accord- 
ance with  specifications  on  file  in  the  office  of  the  city  clerk,  said  specifica- 
tions being  numbered  twelve. 

Reference  is  hereby  made  to  the  said  resolution  of  intention  for  further 
particulars. 

D.  A.   WATSON, 

Street  Superintendent. 


No.  3.     RESOLUTION  ORDERING  WORK  TO  BE  DONE. 

Resolution  ordering  street  work,  No.  926,  (third  series) :  Resolved,  That 
the  street  work  herein  described  is  required  by  the  public  interest  and 
convenience,  and  the  city  council  of  the  city  of  Los  Angeles,  state  of  Cali- 
fornia, hereby  orders  the  same  to  be  done  according  to  the  specifications 
contained  in  its  ordinance,  No.  1847,  and  under  the  direction  and  to 
the  satisfaction  of  the  superintendent  of  streets  of  said  city,  to  wit : 

That  a  cement  sidewalk  five  feet  in  width  be  constructed  along  the  south  side 
of  Eleventh  street  in  said  city  from  the  easterly  curb  line  of  Vernon  street  to 
the  westerly  curb  line  ofSentous  street,  (excepting  such  portions  of  said  street 
between  said  points  along  which  a  cement  or  asphalt  sidewalk  has  been  con- 
structed and  accepted),  said  sidewalk  to  be  constructed  in  accordance  with 
specifications  on  file  in  the  office  of  the  city  clerk,  said  specifications  being- 
numbered  12. 

The  Daily  Journal,  a  daily  newspaper  publisher  and  circulated  in  said 
city,  is  hereby  designated  as  the  newspaper  in  which  this  resolution  and 
notice  of  said  work,  inviting  sealed  proposals,  shall  be  published  in  the 
manner  and  form  and  by  the  persons  required  by  law. 

The  city  clerk  of  said  city  is  hereby  directed  to  post  conspicuously  for 
five  days,  on  or  near  the  chamber  door  of  the  council,  in  the  manner  and 
form  required  by  law,  a  notice,  with  specifications,  inviting  sealed  pro- 
posals or  bids  for  doing  said  work ;  and  said  clerk  is  hereby  directed  to 
publish  for  two  days,  in  the  manner  and  form  required  by  law,  a  notice  of 
said  work,  inviting  sealed  proposals  or  bids  for  doing  said  work,  and 
referring  to  the  specifications  posted  or  on  file,  in  the  said  newspaper 
hereby  designated  for  that  purpose  as  aforesaid.  Said  notice  shall  require 
a  certified  check  or  bond,  either,  as  prescribed  by  law,  and  for  an  amount 
not  less  than  10  per  cent,  of  the  aggregate  of  the  proposal.  Said  clerk  is 


FORMS    UNDER    THE    VROOMAN    ACT  49  a 

also  hereby  directed  to  publish  this  resolution  for  two  days,  in  the  manner 
required  by  law,  in  said  newspaper-designated  for  that  purpose  as  aforesaid. 
I  hereby  certify  that  the  foregoing  resolution  was  passed  by  the  city 
council  of  the  city  of  Los  Angeles,  on  the  13th  day  of  November,  189,2,  by  the 
following  vote: 

Ayes:  Messrs.    Campbell,   Innes,   Munson,  Nickell,  Pessell  and  President 
Teed. 

Noes:  Messrs.  Rhodes  and  Slrohm. 

C.  A.  LUCKENBACH, 
City  clerk  and  ex  officio  clerk  of  the  city  council  of  the  city  of  Los  Angeles. 


No.  4.     NOTICE  INVITING   SEALED   PROPOSALS. 

NOTICE    INVITING    STREET   WORK    PROPOSALS. 

Pursuant  to  statutes  and  to  resolution  No.  1930  of  the  council  of  the  city 
of  Los  Angeles,  adopted  November  20th,  1892,  directing  this  notice,  the 
undersigned  invites  and  will  receive  at  his  office  in  the  city  hall  up  to  11 
o.'clock  A.  M.  of  Monday,  December  11,  189.2,  sealed  proposals  or  bids,  for 
the  following  street  work  to  be  done  according  to  the  specifications  No.  5 
for  graded  and  graveled  streets  in  the  city  of  Los  Angeles,  posted  and  on  file, 
the  iv  for  adopted,  or  herein  mentioned,  to  wit:  That  portion  of  Lyell  street 
in  said  city  from  the  southerly  curb  line  of  Mozart  street  to  the  northerly 
curb  line  of  Kufirts  street,  including  all  intersections  of  streets,  (excepting 
such  portions  of  said  street  and  intersections  as  are  required  by  law  to  be 
kept  in  order  or  repair  by  any  person  or  company  having  railroad  tracks 
thi'ivon,  and  also  excepting  such  portions  as  have  already  been  graded  and 
graveled  and  accepted)  be  graded  and  graveled  in  accordance  with  the  plans 
and  profile  on  file  in  the  office  of  the  city  engineer  and  specifications  on 
file  in  the  office  of  the  city  clerk  of  the  city  of  Los  Angeles  for  graveled 
streets,  said  specifications  being  numbered  five. 

Bidders  must  file  with  each  proposal  or  bid  a  check  payable  to  the  order 
of  the  mayor  of  this  city,  certified  by  a  responsible  bank,  for  an  amount 
which  shall  not  be  less  than  ten  per  cent,  of  the  aggregate  of  the  proposal, 
or  a  bond  for  the  said  amount  and  so  payable,  signed  by  the  bidder  and  by 
two  sureties,  who  shall  justify,  before  any  officer  competent  to  administer 
an  oath,  in  double  the  said  amount,  and  over  and  above  all  statutory 
exemptions. 

In  bidding  use  blanks  which  will  be  furnished  by  the  city  clerk  upon 
application. 

Los  Angeles,  Cal.,  November  80th,  1890. 

FREEMAN  G.  TEED, 
City  clerk  and  ex  officio  clerk  of  the  council  of  the  city  of  Los  Angeles. 

[NOTE  :  The  specifications  must  be  posted  with  the  notice  which  is  posted 
on  or  near  the  council  chamber  door.] 


STREET    WORK    LAW FORMS 


No.  5.     CONTRACTOR'S  PROPOSAL  WITH  BOND. 
I  Attach  Advertisement  here.J 

City  of  Los  Angeles,  December  10,  189,2. 
To  the  Honorable  City  Council  of  the  city  of  Los  Angeles : 

In  compliance  with  the  advertisement  calling  therefor,  a  copy  of  which 
is  hereto  annexed,  /  hereby  propose  and  agree  to  perform  the  work  men- 
tioned, upon  Lyell  street,  in  the  city  of  Los  Angeles  from  the  southerly  curb 
line  of  Mozart  street,  to  the  northerly  curb  line  of  Kuhrts  street,  and  furnish 
materials  in  accordance  with  the  specifications  and  execute  the  contract 
therfor,  to  the  satisfaction  and  under  the  supervision  of  the  street  superin- 
tendent of  said  city  at  the  following  prices,  viz. 

DOLLARS.     CENTS. 


Grading  per  lineal  foot 

Paving  per  square  foot 

Macadamizing  per  square  foot 

Curb  per  lineal  foot 

Sidewalk  per  square  foot 

Sewer  complete  per  lineal  foot 

Manholes  complete  each 

Flushtanks  complete  each 

Lamp  holes  complete  each 


.00 


.50 


CHARLES  F.  MUXSON, 

Contractor. 


BOND. 

Know  all  men  by  these  presents :  That  we  Charles  F.  Munson, (or  ii  the  bid- 
der is  a  corporation,  a  corporation  having  its  office  and  principal  place  of 
business  in  said  city  of  Los  Angeles)  as  principal,  and  Conrad  Scheerer  and 
Martin  C.  Marsh  as  sureties,  are  held  and  firmly  bound  unto  the  mayor  of 
the  city  of  Los  Angeles,  state  of  California,  in  the  just  and  full  sum  of  five 
hundred  dollars,  for  the  payment  whereof  we  hereby  bind  ourselves,  (if  a 
corporation,  successors,)  heirs,  executors  and  administrators,  jointly  and 
severally,  firmly  by  these  presents. 

Given  under  our  hands  and  sealed  with  our  seals,  on  this  10th  day  of 
December,  A.  D.,  one  thousand  eight  hundred  and  ninety-fwo  (if  by  a  cor- 
poration— said  company  subscribing  and  setting  its  corporate  seal  hereto  by 
•  its —  thereto  authorized.) 

The  condition  of  the  foregoing  obligation  is  such  that,  whereas  the  above 
bounden  Charles  F.  Munson  is  about  to  hand  in  and  submit  to  the  coun- 
cil of  the  city  of  Los  Angeles,  the  foregoing  bid  or  proposal,  for  the  perform- 
ance of  the  work  therein  mentioned,  which  includes  the  furnishing  of  all 
materials  in  compliance  with  the  specifications  therefor,  under  an  invita- 
tion of  said  council  contained  in  the  notice  or  advertisement  attached  to 
said  bid  or  proposal :  Now  if  the  bid  or  proposal  of  the  said  Charles  F.  Mun- 
son shall  be  accepted,  and  the  said  work  awarded  to  him  thereupon  by  said 
council,  and  if  the  said  Charles  F.  Munson  shall  fail  or  neglect  to  enter  into 
a  contract  therefor,  and  to  execute  an  adequate  bond  to  the  satisfaction  of 
the  mayor  and  superintendent  of  streets  of  said  city,  with  two  or  more  good 


FORMS    UNDER    THE    VROOMAN    ACT 

and  sufficient  sureties,  conditioned  for  the  faithful  performance  of  such 
contract  on  his  part,  in  such  case  required  by  statute,  then  in  that  case  the 
above  named  obligors  will  pay  to  the  mayor  of  said  city  of  Los  Angeles  the 
full  sum  of  five  hundred  dollars  as  liquidated  damages  for  such  failure  and 
neglect. 

CHARLES"f.  MUNSON,    [SEAL.] 

WITNESS:  CONRAD  SCHEERER,       [SEAL.] 

FRED.  HARKNESS.  MARTIN  C.  MARSH.  [SEAL.] 

State  of  California,  ) 

County  of  Los  Angeles,     f 

Conrad  Scherer  and  Martin  C.  Marsh,  being  severally  duly  sworn  each  for 
himself  and  not  one  for  the  other,  says  that  he  is  one  of  the  sureties  named 
in  the  foregoing  bond,  and  that  he  executed  the  same,  and  is  worth  double 
the  sum  mentioned  therein  over  and  above  all  statutory  exemptions. 

CONRAD SCHEERER, 
MARTIN  C.  MARSH. 

Subscribed  and  sworn  to  before  me  this  10th  day  of  December,  189.2. 
[SEAL.]    FRED.  HARKNESS, 

Notary  Public. 

No.  6.    RESOLUTION  OF  AWARD. 

Resolved,  That  the  city  council  of  the  city  of  Los  Angeles,  having  in  open 
session  on  the  20th  day  of  'December,  189,2  opened,  examined,  and  publicly 
declared  all  sealed  proposals  or  bids  offered  for  the  following  work,  to  wit: 

The  construction  of  a  redwood  curb  along  each  line  of  the  roadway  of  Lyell 
street,  in  said  city,  from  the  southerly  curb  line  of  Mozart  street  to  the  northerly 
curb  line  of  Kuhrts  street,  (excepting  along  such  portions  of  the  line  of  said  road- 
way upon  which  a  redwood,  granite  or  cement  curb  has  already  been  constructed 
and  accepted,)  in  accordance  with  specifications  in  the  office  of  the  cily  clerk  of 
said  city,  for  constructing  redwood  curbs,  hereby  rejects  all  of  said  bids 
except  that  next  herein  mentioned  and  hereby  awards  the  contract  for 
said  work  to  the  lowest  regular  responsible  bidder,  to  wit:  to  Frick  Bros., 
at  the  price  specified  in  their  proposal  on  file  for  said  work,  to  wit :  $1.50 
per  lineal  foot  on  each  side. 

The  city  clerk  is  hereby  directed  to  post  notice  of  this  award  conspicu- 
ously for  five  days  on  or  near  the  council  chamber  door  of  this  council, 
and  also  publish  said  notice  for  two  days  in  the  Los  Angeles  Herald,  a 
daily  newspaper  published  and  circulated  in  this  city,  and  hereby  desig- 
nated for  that  purpose  by  this  council. 

Passed  by  the  council  of  the  city  of  Los  Angeles,  December  27,  189#,  by 
the  following  vote : 

Ayes,  Messrs.  Rhodes,  Strohm,  Campbell,  Innes,  Munson,  and  President 
Teed. 

Noes,  Messrs.  Gaffey,  Nickell  and  Pessell. 

FREEMAN  G.  TEED,  President. 
C.  A.  LUCKENBACH,  City  Clerk. 

Approved  this  28th  day  of  December,  1892, 

HENRY  T.  HAZARD,  Mayor. 


52a  STREET  WORK  LAW FORMS 

No.  7.     NOTICE  OF  AWARD  OF  CONTRACT. 

Pursuant  to  statutes  and  to  the  resolution  of  award  of  the  city  council  of 
the  city  of  Los  Angeles,  passed  December  27,  189#,  directing  this  notice, 
notice  is  hereby  given  that  the  said  city  council,  in  open  session,  on  the 
20th  day  of  December,  189^,  opened,  examined,  and  publicly  declared  all 
sealed  proposals  or  bids  offered  for  the  following  work,  to  wit:  The  construc- 
tion of  a  redwood  curb,  along  each  line  of  the  roadway  of  Lyell  street,  in  said 
city  from  the  southerly  curb  line  of  Mozart  street  to  the  northerly  curb  line  of 
Kuhrts  street,  (excepting  along  such  portions  of  the  line  of  said  roadivay  upon 
which  a  redwood,  granite,  or  cement  curb  has  already  been  constructed  and 
accepted,  in  accordance  with  specifications  in  the  office  of  the  city  clerk  of  *<ihl 
city  for  constructing  redwood  curbs.  And  thereafter  to  wit,  on  the  27th  day 
of  December,  1892,  awarded  the  contract  for  said  work  to  the  lowest  regular 
responsible  bidder,  to  wit,  to  Fr-ick  Bros.,  at  the  prices  named  for  said 
work  in  their  proposal  on  file,  to  wit,  $1.50  per  lineal  foot  on  each  side',  and 
that  the  said  award  has  been  approved  by  the  mayor. 
Clerk's  office,  Los  Angeles,  Oal.,  January  3,  1895. 

'c.  A.  LUCKENBACH, 
City  clerk  cf  the  city  of  Los  Angeles. 

No.  8.     CONTRACT. 

Street  contract,  No.  1000. 

This  agreement,  made  and  entered  into  this  1st  day  of  November,  1895,  by 
and  between  Conrad  Scheerer,  of  the  city  of  .Los  Angeles,  state  of  California, 
party  of  the  first  part,  and  Drury  A.  Watson,  street  superintendent  of  the 
city  of  Los  Angeles,  state  of  California,  under  and  by  virtue  of  the  authority 
granted  to  him  as  such  by  an  act  entitled  "An  act  to  provide  for  the 
improvement  of  streets,  lanes,  alleys,  courts,  places  and  sidewalks,  and  the 
construction  of  sewers  within  municipalities,"  approved  March  18th,  1885, 
and  all  acts  amendatory  thereto,  party  of  the  second  part. 

Whereas,  the  said  part?/  of  the  first  part,  (as  will  more  fully  appear  by 
reference  to  the  record  of  the  proceedings  of  the  city  council  of  said  city  on 
the  18th  day  of  October,  1895,)  has  been  awarded  the  contract  for  the  work 
hereinafter  mentioned ; 

Now,  therefore,  these  presents  witnesseth,  that  the  said  party  of  the  first 
part,  for  the  consideration  hereinafter  mentioned,  promises  and  agrees 
with  said  Drury  A.  Watson,  as  said  street  superintendent,  and  not  other- 
wise, that  he  will  do  and  perform,  or  cause  to  be  done  and  performed  in 
a  good  and  workmanlike  manner,  under  the  direction  and  to  the  satis- 
faction of  the  street  superintendent  of  said  city,  and  furnish  the  neces- 
sary materials  required  for  the  execution  and  completion  thereof,  all  the 
following  work  in  the  said  city  of  Los  Angeles  to  wit :  Grading  and  graveling 
Cummings  street  in  said  city,  from  the  south  curb  line  of  First  street  to  a  point  350 
feet  south  of  the  south  line  of  Fourth  street,  including  all  intersections  of  streets, 
(excepting  such  portions  of  said  street  and  intersections  as  are  required  by  law  to 
be  kept  in  order  or  repair  by  any  person  or  company  having  railroad  tracks 
thereon,  also  excepting  such  portions  as  have  already  been  graded,  graveled  and 
accepted.) 


FORMS  UNDER  THE  VROOMAN  ACT 

Said  work  shall  be  according  to,  and  the  materials  used  shall  comply 
with  the  plans  and  profile  on  file  in  the  office  of  the  city  engineer,  and 
the  specifications  on  file  in  the  office  of  the  city  clerk  of  said  city,  for 
graveled  streets,  said  specifications  being  known  as  specification  No.  5,  and 
hereby  made  part  of  this  contract;  and  all  the  materials  used  shall  be 
to  the  satisfaction  of  the  street  superintendent  of  said  city.  Said  Drury 
A.  Watson,  acting  in  his  official  capacity  as  such  street  superintendent, 
and  not  individually,  hereby  fixes  the  time  for  the  commencement  of  said 
work  to  be  within  ten  days  from  date  hereof,  and  for  its  completion  to  be 
within  thirty  days  from  the  date  hereof,  and  promises  and  agrees  that 
upon  the  performance  of  the  covenants  aforesaid,  by  the  said  party  of 
the  first  part,  he  will  duly  make  and  issue  an  assessment  and  diagram, 
and  attach  a  warrant  thereto,  as  provided  for  in  the  aforementioned  act, 
for  the  expenses  of  the  work  aforesaid,  at  the  following  prices,  in  lawful 
money  of  the  United- States,  to  wit:  For  grading  and  graveling,  three  dollars 
per  lineal  foot. 

And  it  is  agreed  and  expressly  understood  by  the  parties  to  this  agree- 
ment, that  in  no  case  (except  where  it  is  otherwise  provided  in  the  act 
aforementioned  and  referred  to)  will  the  said  city  of  Los  Angeles,  or  any 
officer  thereof,  be  liable  for  ar.y  portion  of  the  expense  of  the  work  afore- 
said, nor  for  any  delinquency  of  persons  or  property  assessed. 

It  is  further  understood  and  agreed  that  eight  (8)  hours  labor  shall 
constitute  a  day's  work,  and  that  the  said  party  of  the  first  part  will  not 
contract  for,  receive  or  require  more  than  eight  (8)  hours  labor  for  a  day's 
work  of  any  person  employed  upon  said  work.  * 

In  witness  whereof,  the  parties  to  these  presents  have  hereunto  set 
their  hands  and  seals  the  day  and  year  first  herein  written. 

CONRAD   SCHEERER.  [SEAL.] 

Contractor. 

DRURY  A.   WATSON,      [SEAL.] 
Street  Superintendent  City  of  Los  Angeles. 
Signed,  sealed  and  delivered  in  the  presence  of 
FRANK  C.  HANNON. 

STREET  CONTRACTOR'S  BOND. 

Know  all  men  by  these  presents-,  that  we, Conrad  Scheerer,  as  principal,  and 
Charles  F.Munson  and  Martin  C. Marsh,  as  sureties,  residents  of  the  city  of  Los 
AiKji'les,  county  of  Los  Angeles,  state  of  California,  are  jointly  and  severally 
bound  unto  the  city  of  Los  Angeles  in  the  state  of  California,  in  the  sum  of 
One  Thousand  dollars,  lawful  money  ot  the  United  States  of  America,  to  be 
paid  to  the  city  of  Los  Angeles,  for  which  payment  well  and  truly  to  be 
made,  we  bind  ourselves,  our,  and  each  of  our  heirs,  successors,  executors, 
administrators,  or  assigns,  jointly  and  severally  by  these  presents. 

Sealed  with  our  seals,  and  dated  this  1st  of  November,  A.  D.  1893. 

The  condition  of  this  obligation  is  such,  that  if  the  above  bounden  Conrad 
Scheerer,  his  heirs,  successors,  executors,  administrators,  or  assigns,  shall  in 
all  things  stand  to  and  abide  by,  and  well  and  truly  keep  and  faithfully 
perform  the  covenants,  conditions  and  agreements  in  that  certain  contract 


54a  STREET  WORK  LAW FORMS 

made  between  said  Conrad  Scheerer,  as  contractor,  and  Drury  A.  Watson, 
as  street  superintendent  of  the  city  of  Los  Angeles,  state  of  California,  of 
even  date  herewith,  for  furnishing  materials  in  compliance  with  specifica- 
tions and  performing  the  following  work,  to  wit: 

[Here  insert  the  description  of  the  work  in  the  contract.] 

or  cause  the  same  to  be  kept  and  performed   in  the  manner  and  form 
therein  specified,  then  the  above  obligation  to  be  void,  else  to  remain  in 
full  force  and  virtue. 
Sealed  and  delivered  in  presence  of 

FRED.  HARKNESS.  CONRAD  SCHEERER,         [SEAL.] 

CHARLES  F.  MUNSON,      [SEAL.] 
MARTIN  C.  MARSH,  [SEAL.] 

State  of  California,  ) 

County  of  Los  Angeles.      } 

Charles  F.  Munson  and  Martin  C.  Marsh,  whose  names  are  subscribed 
as  sureties  to  the  above  bond,  being  severally  duly  sworn,  each  for  himself, 
deposes  and  says  he  is  worth  double  the  sum  mentioned  therein,  to  wit,  is 
worth  the  sum  of  $%000.00in  fixed  property  and  real  estate,  situated  in  said 
state  of  California,  over  and  above  his  just  debts  and  liabilities,  exclusive 
of  property  exempt  from  execution,  and  over  and  above  all  sums  for  which 
he  is  already  liable  or  in  any  manner  bound,  whether  as  principal,  indorser 
or  security,  and  whether  such  prior  obligation  or  liability  be  conditional  or 
absolute,  liquidated  or  unliquidated,  certain  or  contingent,  due  or  to 
become  due. 

CHARLES  F.  MUNSON,  [SEAL.] 
MARTIN  C.  MARSH,        [SEAL.] 
Subscribed  and  sworn  to  before  me,  this  1st  day  of  November,  A.  D.  1895. 

FRED.  HARKNESS, 

Notary  Public  in  and  for  the  county  of  Los  Angeles,  State  of  California. 
Approved  this  1st  day  of  November.  1895. 

DRURY  A.  WATSON, 

Street  Superintendent  of  the  city  of  Los  Angeles. 

The  sum  mentioned  in  the  above  bond  is  by  me  deemed  to  be  adequate, 
is  the  sum  fixed  by  me  for  that  purpose,  and  said  bond  is  hereby  approved 
by  me  this  1st  day  of  November,  1895. 

T.  E.  ROWAN, 

Mayor  of  the  city  of  Los  Angeles. 

*    The  above  clause  in  the  contract  relative  to  eight  hours  constituting  a  day's 
labor  is  required  by  section  3245  of  the  Political  Code. 


FORMS    UNDER    THE    VROOMAN    ACT  55<X 

No.  9.    RESOLUTION  OF  EXTENSION. 

Resolved,  by  the  city  council  of  the  city  of  Los  Angeles,  in  open  session 
on  this  28th  day  of  November,  1895,  that  the  superintendent  of  streets  of 
said  city  be, and  he  hereby  is  authorized  and  directed  to  extend,  by  ten  days, 
the  time  fixed  by  him  in  that  certain  contract  numbered  No,  1000,  entered 
into  by  him  with  Conrad  Scheerer,  to  do  certain  street  work,  viz :  To  grade 
and  gravel  certain  portions  of  Cummings  street. 

I  hereby  certify  that  the  foregoing  resolution  was  passed  by  the  city 
council  of  the  citv  of  Los  Angeles,  on  the  28th  day  of  November,  1895,  by 
the  following  vote: 

Ayes  :  Messrs.  Campbell,  Innes,  Gaffey,  Munson,  Nickell,  Pessell,  Rhodes, 
Slrohm,  and  President  Teed. 

Noes:  None. 

C.  A.  LUCKENBACH, 
City  clerk  and  ex  officio  clerk  of  the  city  council  of  the  city  of  Los  Angeles 


No.  10.    EXTENSION  OF  TIME. 

Under  the  direction  of  the  city  council  of  the  city  of  Los  Angeks,  by  its 
resolution,  passed  November  28th,  1895,  and  by  virtue  of  the  authority  vested, 
by  statute,  in  me  as  street  superintendent  of  said  city,  I  hereby  extend  by 
ten  days  the  time  fixed  by  me  in  the  within  contract,  numbered  1000,  for 
the  work  therein  specified. 

Office  of  the  street  superintendent,  city  of  Los  Angeks,  this  28th,  day  of 
November,  A.  D.,  1895. 

DRURY  A.  WATSON, 
Street  Superintendent  of  the  city  of  Los  Angeles. 


56a  STREET  WORK  LAW FORMS 

No.  11.    ASSESSMENT. 

In  the  matter  of  Requena  street  from  the  east  line  of  Los  Angeles  street  to  the 
west  line  of  Alameda  street. 

ASSESSMENT   NUMBER    1. 

Pursuant  to  statute,  I,  D.  A.  Watson,  as  superintendent  of  streets  of  the 
city  of  Los  Angeles,  in  the  county  of  Los  Angeles  and  state  of  California,  do 
hereby  assess  and  apportion,  as  shown  hereinafter  and  in  the  diagram 
attached  hereto,  upon  certain  lots,  portions  of  lots,  and  parcels  of  land, 
fronting  on  Requena  street  in  said  city,  from  the  east  line  of  Los  Angeles 
street  to  the  west  line  of  Alameda  street  and  on  streets  intersecting  it 
between  said  lines,  the  sum  oifive  thousand  two  hundred  and  seventy-one  and 
44-100  dollars,  ($5271  44-100}  to  be  paid  to  The  Porphyry  Paving  Company  its 
agents  or  assigns,  to  cover  the  sum- due  (including  incidental  expenses) 
for  the  work  of  macadamizing  and  curbing  with  cement  said  Requena  street 
between  said  lines,  as  said  work  is  more  particularly  specified  in  my  official 
contract  therefor  with  said  Porphyry  Paving  Company,  dated  the  21st  day  of 
July,  A.  D.  189.Z. 

All  of  said  work  has  been  performed  and  materials  furnished  complying 
with  the  specifications  and  under  my  direction  and  to  my  satisfaction  and 
acceptance.  And  because  the  names  of  the  owners  of  said  assessed  prop- 
erty are  unknown  to  me,  I  herein  write  the  word  ''unknown"  opposite  the 
number  of  the  lot  and  the  amount  assessed  thereon  and  the  number  of  each 
lot,  portion  of  a  lot,  or  parcel  of  land  assessed. 

Total  cost  of  the  work  is  $5271  44-100,  as  follows : 

33,668.5  square  feet  of  macadam  at  14  cents  per  square  foot $4713.59 

743.37    lineal  feet  of  cement  curb  at  40  cents  per  foot $297.35 

Total  contract  cost $5010.94 

INCIDENTAL   EXPENSES. 

City  engineer's  official  fees $      76.90 

Printing  and  advertising $      38.60 

Special  paving,  superintendent's  compensation  @  $2.50  per  day  $    145.00 

Incidental  expenses $    260.50 

Contract  cost $  5010.94 

Total  cost,  including  incidental  expenses $  5271.44 

DIVIDED    AS    FOLLOWS  ! 


O     o 


I  3 


S  te-| 

O  N  «n- 

'~h  K.  O* 

^  ^  QD' 

fD  — «  ta 

O  (J  s^ 

^  8  •  & 

o  o  '^ 

!  ^  o 


5  c  S 
s  «  § 
s  s  s 

0 

i 

H 

i*,. 

o"2  % 

'      "^    X 

ASSESSED  LIPO/M 

to  to  to 

Block 

III 

8§g 

a  s  a 
sea 

Tractor  Subdivision 

*.** 

Lot 

**£ 

"**$ 

31 

il 

Front  Feet  on 

=  - 

»  r 
—  - 

Feet 
Oi  pofiito 
Term. 

IIs 

Oi  Oi  £? 

1  ts  ^  v? 

Dollars 

Frontage 
Assessment 

Oi  K*  Oi 

^NJ     Kfc     K* 

? 

Dollars 

Termination 
Assessment 

c 

Dollars 

Opposite 
Termination 
Assessment 

g 

7 

('rossino; 
Assessment 

\2 

1  • 

<ia 

Oi  Oi  ^ 

Dollars 

Total  ' 
Assessment 

Oi  Ki  Oi 
l^  Ki   Ki 

C 
X 

3 

H 

$ 


ftc 
x  » 

I? 


Bg" 

ft  1-1 


2- 1 

2 
o 


No.  12.  DIAGRAM, 

I       I 


LEA-VEN  WORTH                                                         STREET. 

12         25 

27   26 

So      co 
12         25 

25 

25 

S 

25 

23            25            25 

24     23      9 

:o               ^o               ^          ^ 
2n             25             25 

< 
JH 

a 
H 

H 

CO 

55 

O 

o 
a 

W 

OQ 
^ 
^ 

•JO            'JO 

8 

5     S  I        55 

7 

=         t;o               ^ 

?                6 

C>0 

SJ               ^        ?. 
60 

»             60     * 

REED    STREET.          (**) 

1:17 

3 

1C 

137 

20        20 

"o     JH         tft 

19  20 

20 

20 

21S 

20 

20   -,         57iO- 

<N                                    IV    « 

o7 

22"   "     "  «  -  : 

11          0. 

i:;7 

2 

A 

137 

40 
o      lO     S 

40 

20 
lo 

17 

20 

20     * 
*                    5? 

1  -    12  57      ^ 

20     C                 57 

PRIEST    STREET.        (15) 

60 

\V 

I 

i            j.    s—  «•  >: 

E                                i 

60 

137 

§               1S             § 

187 

JONES 


STREET. 


FORMS    UNDER    THE    VROOMAN    ACT 

The  above  is  a  diagram  exhibiting  Washington  street  in  the  city  and  county 
of  San  Francisco,  state  of  California,  and  its  intersecting  streets,  from  the 
west  curb  line  of  Jones  street  to  the  east  curb  line  of  Leavenworth  street,  on 
whicli  work  has  been  done  under  m\  official  contract,  dated  the  27th  day 
of  October,  1888,  and  executed  by  me  as  superintendent  of  streets 
of  said  city  and  county,  with  the  Pacific  Paving  Company,  a  cor- 
pora I  ion,  for  paving  said  Washington  street  from  said  line  of 
Jones  street  to  said  line  of  Leavenworth  street,  as  will  more 
fully  appear  from  said  contract,  to  which  reference  is  hereby  made 
for  further  particulars.  Said  diagram  shows  the  relative  location  of  each 
district,  lot,  portion  of  lot  and  parcel  of  land  assessed,  to  the  work  done; 
is  numbered  to  correspond  with  the  numbers  in  the  assessment  attached 
hereto. — said  numbers  being  in  red;  and  shows  the  number  of  feet  front- 
ing assessed  for  said  work  contracted  for  and  performed.  The  figures  in 
the  diagram  in  black  ink,  represent  feet  and  fractions  of  feet.  Those  next 
to  property  lines  show,  each,  the  length  of  said  lines  in  feet.  The  figures 
in  red  ink  show  the  numbers  of  the  lots. 

In  witness  whereof,  I  have  hereto  set  my  hand  at  said  city  and  county 
<>f  Sun  Francisco,  this  16th  day  of  January,  1889. 

THOMAS  ASHWORTH, 
Superintendent  of  streets  of  the  city  and  county  of  San  Francisco. 

Recorded  this  16th  day  of  January,  1889. 

THOMAS  ASHWORTH, 
Superintendent  of  streets  of  the  city  and  county  of  San  Francisco. 

[XOTK:  It'  any  abbreviations  are  used,  such  as  "No.,"  "ft.,"  "in.,"  etc., 
their  meaning  should  be  stated.  Thus,  it  may  be  proper  to  insert  some- 
thing like  the  following:  Herein,  "No."  is  used  for  the  word  "number;" 
"ft."  for  the  word  "feet;"  "in."  for  the  word  "inches."  The  marks 
'  and  ff  means  respectively  "feet"  and  "inches."] 


No.  13.    WARRANT. 

By  virture  hereof,  I,  Drury  A,  Watson,  superintendent  of  streets,  of  the 
city  of  Ao*  Aniji'lfn,  county  of  Los  Angel's,  and  state  of  California,  by  virtue 
of  the  authority  vested  in  me  as  said  superintendent  of  streets,  do  authorize 
and  empower  the  Porphyry  Paving  Company,  its  agents  or  assigns,  to 
demand  and  receive  the  several  assessments  upon  the  assessment  and 
diagram  hereto  attached,  and  this  shall  be  its  warrant  for  the  same. 
Dated  at  Los  Angeles,  this  28th  day  of  October,  189.Z. 

DRURY  A.   WA TSON, 

Superintendent  of  streets  of  the  city  of  Los  Angeles. 
Countersigned  by:     T.  E.  ROWAN, 

Mayor  of  the  city  of  Los  Angeles. 
Recorded  this  2Sth  day  of  October,  1897. 

DRURY  A.   WATSON, 
Superintendent  of  streets  of  the  city  of  Los  Angeles. 


60&  STREET    WORK    LAW-— FORMS 


No.  14.     CONTRACTOR'S  RETURN. 


STATE    OF   CALIFORNIA, 

County  of  Los  Angeles 
City  of  Los  Angeles. 


•\ 


H.  A.  Palmer  being  duly  sworn,  says  that  he  is  the  secretary  of  the  Pof 
phyry  Paving  Co.,  contractor  named  in  the  annexed  assessment,  diagram 
and  warrant ;  that  said  assessment  for  the  total  cost  of  certain  street  work 
upon  Requena  street  between  Los  Angeles  and  Alameda  streets  in  said  city, 
as  more  fully  described  therein,  and  in  the  contract  for  said  work  with  said 
Porphyry  Paving  Company  made  by  the  superintendent  of  streets  of  said 
city,  dated  the  21st  day  of  July,  A.  D.  189.?,  levied  as  therein  described 
upon  certain  lots,  portions  of  lots,  or  parcels  of  land,  and  the  unknown 
owners  thereof  for  the  sum  of  five  thousand  two  hundred  and  seventy-one 
and  44-100  dollars,  ($5271.44-100},  payable  to  Porphyry  Paving  Company, 
its  agents  or  assigns,  was  made,  and  with  the  city  engineer's  certificate  of 
said  work,  was  recorded  and  delivered  by  said  superintendent  of  streets  on 
the  88th  day  of  October,  189.?,  to  affiant  in  behalf  of  said  contractor;  that 
there  were  attached  to  the  same  and  delivered  to  the  same  in  the  same 
behalf  at  the  same  time  by  the  said  superintendent  of  streets,  his  diagram 
hereto  attached,  and  a  warrant  in  favor  of  Porphyry  Paving  Company  for 
collecting  said  assessment,  upon  which  warrant  this  return  is  endorsed  • 
that  in  the  case  of  all  assessments  therein  described,  but  not  included  in 
the  following  table,  affiant  has,  since  the  date  last  aforesaid,  in  the  manner 
hereinafter  described  and  in  behalf  of  said  contractor,  made  demand  upon 
and  received  full  payment  from  the  owners  of  each  and  all  such  assessed 
lots  and  lands;  and  that  besides  all  personal  demands,  affiant  did,  where- 
ever  the  name  of  the  owner  of  the  lot  is  stated  as  "unknown"  on  the 
assessment,  on  the  27th  day  of  November,  A.  D.  189.7,  within  thirty  days 
from  the  date  of  said  warrant,  and  between  the  hours  of  9  A.  M.  and  5  p.  M.T 
in  behalf  of  said  contractor  enter  upon  each  of  the  corresponding  lotsr 
portion  of  lots,  and  parcels  of  land  assessed,  and  with  said  certificate, 
assessment,  diagram  and  warrant,  and  in  a  loud,  audible  voice,  publicly 
make  separate  demands  for  the  payment  of  each  of  said  assessments  from 
the  unknown  owners  thereof,  upon  each  lot,  portion  of  lot,  or  parcel  of 
land,  for  each  of  its  own  assessments  as  specified  in  said  assessment;  and 
that  wherever  he  found  a  building,  tenant  or  occupant  upon  any  of  said 
premises,  besides  the  public  demands  as  aforesaid,  he,  at  the  same  timey 
in  the  same  behalf,  presenting  and  exhibiting  said  certificate,  assessment, 
diagram  and  warrant  in  each  instance,  demanded  from  each  tenant,  or 
occupant,  for  the  unknown  owners,  separately,  the  payment  of  each  of  said 
assessments  upon  said  premises;  and  in  the  following  table  he  states  the 
name  of  such  demandee,  as  "tenant"  or  "occupant,"  with  the  word 
"unknown;"  but  that,  notwithstanding  said  demands,  the  following  totals 
of  said  assessed  sums,  each  separately  demanded,  and  also  the  total,  remain 
unpaid,  to  wit: 


FORMS  UNDER  THE  VROOMAN  ACT 


61a 


DEMAND 
MADE  UPON  AS 
OWNERS. 

Assessment 
Number. 

DATE 

OF 

DEMAND. 

Assessment  Due 
and  Unpaid. 

Subsequent  Payments. 

Dollars. 

Cents. 

Unknown. 
Unknown. 
Unknown. 

1 

2 
3 

Nov.  27  J91 
Nov.  27  '91 
Nov.  21  '91 

817 

60 
62 

61 
11 

62 

H.  A.  PALMER, 

Subscribed  and  sworn  to  before  me  this  27th  day  of  November,  189.7. 

FRED.  HARKNESS, 

Notary  Public. 
Filed  this  27th  day  of  November,  189J, 

D.  A.  WATSON, 

Superintendent  of  streets  of  the  city  of  Los  Angeles. 
Recorded  this  27th  day  of  November,  1891, 

D.  A.  WATSON, 
Superintendent  of  streets  of  the  city  of  Los  Angeles. 


No.  15.    CERTIFICATE  OF  RECORD. 

I  hereby  complete  and  sign  the  foregoing  record,  from  page  84  to  page 
44,  both  inclusive,  of  the  assessment,  diagram,  warrant,  certificate  of  the 
city  engineer,  contractor's  return;  and  also  in  the  book  of  "contracts  and 
bonds,"  the  recorded  contract  and  bond,  each  numbered  No.  1000,  all  for 
the  work  therein  described  upon  Requena  street,  from  the  east  line  of  Los 
Angeles  street,  to  the  west  line  of  Alameda  street,  in  the  city  of  Los  Angeles, 
state  of  California. 

Office  of  the  superintendent  of  streets  of  the  city  of  Los  Angeles,  state  of 

California,  this  27th  day  of  November,  1891. 

D.  A.  WATSON, 

Superintendent  of  streets  of  the  city  of  Los  Angeles. 


The  n^essment.  diagram,  warrant  and  certificate  of  the  city  engineer  must  be 
recorded  by  tin-  superintendent  of  streets  before  delivery  to  tbe  contractor,  and,  to  constitute  a 
record,  the  ivord  thereof  must  be  authenticated  by  the  signature  of  the  street  superintendent. 
See  tH-i'tion  '.)  and  the  notes  thereto. 


No.  16.     COMPLAINT  TO  FORECLOSE  A  STREET  ASSESSMENT  LIEN. 
[TITLE  OF  COURT  AND  CAUSE.] 
The  plaintiff  complains  and  alleges: 


That  the  defendant  is,  and  at  all  the  times  herein  mentioned  was,  the 

owner  of  the  following  described  property,  fronting  on street,  in 

the  city  of  Los  Angeles,  county  of  Los  Angeles,  state  of  California,  between 

the line  of street  and  the  line  of street,  and 

more  particularly  described  as  follows,  to  wit: 

[Here  insert  description  of  the  property  sought  to  be  charged  with  the 
assessment  lien.] 


62a  STREET   WORK  LAW FORMS 

II. 

That  on  the  13lh  day  of  January,  1890,  at  the  city  of  Los  Angeles,  state  of 
California,  the  city  council  of  said  city  duly  passed  and  adopted  a  resolu- 
tion in  writing,  wherein  and  whereby  said  city  council  duly  resolved  and 
determined  that  it  was  the  intention  of  said  city  council  to  order  the 
following  described  street  work  to  be  done,  to  wit: 

[Here  insert  the  description  of  the  work  contained  in  the  resolution 
of  intention.] 

NOTE:  It  is  not  necessary  to  aver  that  the  city  hy  which  the  work  was  done,  was  a 
municipal  corporation,  nor  is  it  necessary  to  aver  that  the  street  upon  which  the  work 
was  done  was  an  open  public  street.  The  court  will  take  judicial  notice  that  the  city 
in  question  was  a  municipal  corporation,  and  the  averment  ol the  passage  of  a  resolution 
of  intention  to  do  work  upon  a  certain  street  is  tantamount  to  »m  averment  that  it  was  aii 
open  public  street  in  said  city.  Bituminous  Lime  Rock  Paving  and  Imp.  Co.  v.  Fulton, 
33  Pac.Rep.  1117.  Courts  will  take  judicial  notice  of  the  streets  of  San  Francisco,  of  their 
relation  to  each  other  and  their  location.  Brady  v.  Page,  59  Cal.  52;  Williams  v.  Savings 
and  Loan  Hoc.,  97  Cal.  122. 

In  common  law  pleading,  in  counting  upon  the  judgment  or  determination  of  an 
iuterior  court  or  body,  it  was  necessary  to  state  the  facts  which  conferred  jurisdiction, 
both  of  the  subject  matter  and  over  the  person.  Himmellman  v.  Danos,  35  Cal.  441. 
Under  section  456  of  the  Code  of  civil  Procedure,  it  is  sufficient,  in  pleading  the  judg- 
ment, or  determination  of  an  office  or  board,  to  merely  state  that  such  judgment  was 
duly  made  or  given.  This  provision  of  the  Code  is  applicable  to  the  judgments  and 
determinations  of  city  councils  in  street  work  proceedings,  and  it  is  sufficient  to  aver 
that  the  judgment  or  determination  of  the  council  was  duly  made  or  given.  Such  an 
averment  is  a  statement  in  legal  effect  that  everything  necessary  to  be  done  to  give  the 
order  or  resolution  validity  has  been  done.  Pacific  Paving  Company  v.  Bolton,  97 
Cal.  8;  Bituminous  Lime  Rock  Paving  and  Imp.  Co.  v.  Fulton,  33  Pac.  Rep.  1117.  See 
notes  to  section  12  of  the  Vrooman  Act,  supra  page  151,  et.  seq.  An  allegation  that  the 
resolution  or  order  was  "duly  passed  and  adopted,"  is  sufficient  under  the  pr  'Visions  of 
section  456  of  the  Code  of  Civil  Procedure.  Lf>s  Angeles  v.Waldron,  65  Cal.  282. 

"In  pleading  the  existence  of  ti  e  resolution  or  order,the  complaint.in  stating  that  the 
council  'duly  passed  and  adopted  it,'  is  sufficient  as  stating  in  legal  effect,  that  every- 
thing necessary  to  be  done  by  the  council,  or  under  its  direction,  to  give  the  order  or 
I*  solution  validity,  had  been  done,  without  stating  each  particular  thing  or  act."  Los 
Angeles  v.  Waldron,  65  Cal.  282. 

III. 

That  thereafter,  to  wit,  on  the  10th  day  of  March,  1890,  at  said  city  of  Los 
Angeles,  said  city  council,  deeming  that  the  public  interest  and  convenience 
required  it,  duly  passed  and  adopted  a  resolution  in  writing,  wherein  and 
whereby  said  city  council  duly  gave  and  made  its  order  and  determination 
ID  writing  ordering  said  street  work  to  be  done. 

NOTE  :  This  is  a  sufficient  allegation  under  section  456  of  the  Code  of  Civil  Procedure, 
that  everything  necessary  to  give  validity  to  the  order  had  been  properly  done.  Pacific 
Paving  Company  v.  Bolton,  97  Cal.  8;  Bituminous  Lime  Rock  Paving  and  Imp.  Co.  v. 
Fulton,  33  Pac.  Rep.  1117;  Los  Angeles  v.  Waldron,  63  Cal.  282. 

IV. 

That  thereupon,  and  before  awarding  the  contract  for  doing  said  work,  as 
hereinafter  alleged,  said  city  council,  by  order  duly  given  and  made,  and 
contained  in  said  resolution  ordering  said  street  work  to  be  done,  duly 
ordered  and  directed  the  city  clerk  of  said  city  to  publish,  in  the  manner 
required  by  law,  said  resolution  ordering  said  work  to  be  done,  for  two 
days  in  the  Los  Angeles  Herald,  and  to  post  and  keep  posted  for  five  succes- 
sive days,  in  the  manner  and  form  required  by  law,  on  [or  near]  the  council 
chamber  door  of  said  city  council,  a  written  notice,  with  specifications, 
inviting  sealed  proposals  or  bids  for  doing  said  work;  and  also  to  publish, 
in  the  manner  and  form  required  by  law,  in  the  said  Los  Angeles  Her  aid,  for 
two  days,  consecutively,  a  notice  of  said  work  inviting  said  proposals,  and 
referring  to  the  specifications  posted  and  on  file. 


FORMS  UNDER  THE  VROOMAN  ACT 

v. 

That  said  Los  Angeles  Herald  is,  iind  at  all  the  times  herein  mentioned 
was,  a  daily  newspaper,  printed,  published  and  circulated  in  said  city  of 
Ln*  Anyi-Ir*.  and  was  the  newspaper  designated  by  said  city  council  for 'the 
purpose  of  said  publications,  and  of  each  of  them. 

VI. 

That  thereupon,  and  before  the  award  of  said  contract,  said  city  clerk, 
pursuant  to  the  terms  and  directions  of  said  order,  and  in  his  official 
capacity  as  such  city  clerk,  duly  caused  said  resolution,  ordering 
said  work  to  be  done,  to  be  published  by  two  insertions  for  and  on  two 
consecutive  days  in  said  newspaper,  and  the  same  was  duly  published 
by  two  insertions  for  and  on  two  consecutive  days  in  said  news- 
paper, as  ordered  and  directed  by  said  city  council,  to  wit,  on  the  llth  and 
Utli  days  of  March,  1890. 

VII. 

That  before  passing  said  resolution  ordering  said  work  to  be  done,  speci- 
fications were  required  by  said  city  council  for  the  construction  of  said 
work,  and,  pursuant  to  said  requirement,  were  duly  furnished  to  said  city 
council  by  the  city  engineer  of  said  city,  acting  in  his  official  capacity. 

VIII. 

TJhut  thereafter,  and  before  the  awarding  of  said  contract,  and  pursuant  to 
the  terms  and  directions  of  said  order  of  said  city  council,  ordering  and 
directing  him  so  to  do  as  aforesaid,  said  city  clerk,  in  his  official  capacity, 
on  the  J'ttti  day  of  March,  1890,  posted,  and  for  five  successive  days,  to  wit, 
the  15th,  16th,  17th,  18th  and  19th  days  of  March,  1890,  kept  posted,  con- 
spicuously on  [or  near  ]  the  council  chamber  door  of  said  council,  a  printed 
notice,  with  the  specifications,  inviting  sealed  proposals  or  bids  for  doing 
said  work. 

IX. 

That,  pursuant  to  the  said  order  and  direction  of  said  city  council,  duly 
given  and  made,  and  contained  in  said  resolution  ordering  said  work  to  be 
done,  ordering  and  directing  him  so  to  do,  said  city  clerk,  in  his  official 
capacity  as  such,  published  in  said  Los  Angeles  Herald  by  two  insertions 
for  two  days,  consecutively,  as  often  as  said  newspaper  was  issued,  to  wit, 
on  the  15th  and  16th  days  of  March,  1890,  a  printed  notice  of  said  work, 
describing  the  same,  inviting  sealed  proposals  or  bids,  and  referring  to 
the  specifications  so  posted  as  aforesaid,  and  to  the  specifications  on  file. 

x. 

That  thereafter,  to  wit,  on  the  20th  day  of  March,  189(9,  plaintiff  delivered 
to  the  clerk  of  said  city  council  a  sealed  proposal  to  do  said  work,  signed  by 
plaintiff,  by  which  said  proposal  plaintiff  proposed  and  offered  to  do  said 
work  fully  in  all  respects  as  required  by  said  specifications,  and  at  the  fol- 
lowing prices,  viz :  [Here  insert  the  prices  for  which  each  piece  of  work 
was  proposed  to  be  done.]  Said  proposal  was  then  and  there  accompanied 
by  a  check  payable  to  the  order  of  the  mayor  of  said  city,  certified  by  a 


STREET    WORK    LAW FORMS 

responsible  bank,  to  wit,  the  Los  Angeles  National  Bank,  a  bank  incorpora- 
ted under  the  national  banking  laws  of  the  United  States  of  America,  for  an 
amount  equal  to  ten  per  cent,  of  the  aggregate  amount  of  said  proposal,  [or 
by  a  bond,  payable  to  the  order  of  the  mayor  of  said  city,  for  an  amount 
equal  to  ten  per  cent,  of  the  aggregate  amount  of  said  proposal,  signed  by 
plaintiff  and  by  two  sufficient  sureties,  each  of  whom  justified  in  said 
city  of  Los  Angeles  in  double  the  said  amount,  and  over  and  above  all  statu- 
tory exemptions,  before  Fred.  Harkness,  a  notary  public  duly  commis- 
sioned and  appointed  as  such  in  and  for  the  countv  of  Los  Angeles,  in  said 
state,  and  acting  as  such  in  said  city  of  Los  Angeles]  and  plaintiff  then 
and  there  became  and  was  and  continued  to  be  a  responsible  bidder  for 
said  work,  until  the  award  to  him  of  the  contract  for  said  work,  as  herein- 
after alleged. 

XI. 

That  other  sealed  proposals  to  do  said  work  were  delivered  to  said  clerk 
by  other  persons,  and,  on  the  24th  day  of  March,  1890,  said  city  council,  in 
open  session,  in  its  council  chamber  in  said  city,  opened  all  of  said  pro- 
posals, and  then  and  there  duly  examined  and  publicly  declared  the  same. 

XII. 

That  thereafter,  to  wit,  on  the  31st  day  of  March,  1890,  said  city  council, 
in  open  session,  and  at  the  same  place  aforesaid,  considered  all  of  said  pro- 
posals, and  then  and  there  rejected  each  and  all  of  said  proposals  or  bids, 
other  than  plaintiff's  said  proposal,  and  that  plaintiff's  said  proposal  was 
the  lowest  regular  proposal  or  bid  of  any  responsible  bidder,  and  plaintiff's 
said  proposal  was  then  and  there  found  to  be  that  of  the  lowest  responsible 
bidder. 

XIII. 

That  said  city  council  at  its  said  session  on  said  31st  day  of  March,  1890, 
at  its  said  council  chamber,  duly  passed  and  adopted  a  resolution  in  writing, 
wherein  and  whereby  said  city  council  duly  awarded  the  contract  for  said 
work  to  the  plaintiff,  who  was  the  lowest  responsible  bidder  therefor,  and 
at  the  said  prices  named  in  his  said  bid,  and  rejected  all  other  proposals 
and  bids.  Said  resolution  was  approved  by  the  mayor  of  said  city,  acting 
in  his  official  capacity  as  such  [or,  was  passed  and  approved  by  a  three- 
fourths  vote  of  said  city  council.] 

NOTE:  If  the  order  for  the  work  to  be  done  be  the  "judgment  or  determination"  of  a 
board,  within  the  meaning  of  section  456  of  the  Code  of  Civil  Procedure,  and  if,  under 
thai  section,  an  allegation  that  such  order  was  duly  given  or  made,  or  an  allegation  that 
the  resolution  ordering  the  work  to  be  done  was  "duly  passed  and  adopted,"  be  equiva- 
lent, in  legal  effect,  to  a  specific  allegation  of  each  and  everything  uece-sary  to  be  done 
to  give  such  order  or  resolution  validity— as  was  held  in  Pacific  Paving  Co.  v.  Bolton,  97 
Cal.  8— then  there  does  not  seem  to  be  any  reason  why  an  allegation  that  the  resolution 
awarding  the  contract  was  duly  passed  and  adopted,  should  not  be  held  sufficient,  and 
equivalent  to  a  specific  allegation  of  each  and  every  thing  preceding  the  resolution  of 
award,  and  necessary  to  give  it  validity.  For,  if  the  resolution  of  construction,  or  order 
fortheworktobedone.be  the  "judgment  or  determination"  of  a  board,  within  the 
meaning  of  said  section  of  the  code,  then  the  resolution  awarding  the  contract  seems  to 
be  just  as  much  a  "judgment  or  determination"  of  a  board.  However,  in  the  absence  of 
an  authority  directly  in  point,  it  was  deemed  best,  in  the  form  of  complaint  given 
above,  to  allege  specifically  each  of  the  necessary  jurisdictional  prerequisites  intermedi- 
ate between  the  resolution  of  construction,  or  order  for  the  work  to  be  done,  and  the  res- 
olution awarding  the  contract. 


FORMS  UNDER  THE  VROOMAN  ACT 

XIV. 

That,  at  the  same  time  and  place,  by  order  duly  given  and  made,  con- 
tained in  said  resolution  awarding  said  contract,  the  said  city  council  duly 
ordered  and  directed  said  city  clerk  to  post  notice  of  said  award  for  five 
days  in  the  manner  and  form  required  by  law,  and  duly  ordered  and 
directed  said  city  clerk  to  publish  notice  of  said  award  for  two  days,  in  the 
manner  and  form  required  by  law,  in  the  Evening  Express* 

xv. 

That  said  Evening  Express  was  the  newspaper  designated  by  said  city 
council  for  the  purpose  of  said  publication,  and,  at  all  the  times  herein 
mentioned  was  a  .daily  newspaper  printed,  published  and  circulated  in  said 
city  of  Los  Angeles. 

XVI. 

That  thereafter,  to  wit,  on  the  2nd  day  of  April,  1890,  the  said  city  clerk, 
pursuant  to  the  terms  of  said  order  and  direction,  ordering  and  directing 
him  so  to  do,  posted  such  notice  of  said  award,  conspicuously,  on  [or  near] 
the  council  chamber  door  of  said  council,  and  kept  the  same  posted  for  five 
successive  days,  to  wit,  the  2nd,  3rd,4th.  5th  and  6th  days  of  April,  1890,  and 
at  the  same  time,  and  pursuant  to  the  terms  of  said  order  and  direction, 
said  city  clerk  caused  a  like  notice  of  said  award  to  be  published  for  two 
successive  days  in  said  Keening  Express,  and,  pursuant  to  said  order,  the 
same  was  published  in  said  newspaper  by  two  insertions  for  two  successive 
days,  as  often  as  the  same  was  issued,  to  wit,  on  the  2nd  and  3rd  days  of 
April,  1890. 

XVII. 

That  the  owners  of  three-fourths  of  the  frontage  of  the  lots  and  lands 
upon  said  street,  wherein  said  work  was  ordered  to  be  done  as  aforesaid,  to 

wit, street,  between  the  line  of  street  and  the line 

of  —  —  street,  did  not,  either  in  themselves  or  in  their  own  names,  or  by  or 
through  their  agents,  or  otherwise,  elect,  at  any  time,  to  take  said  work,  or 
any  part  thereof,  or  to  enter  into  any  contract  to  do  the  whole,  or  any  part 
of  said  work,  at  the  prices  at  which  the  same  had  been  awarded  as  afore- 
said, or  at  any  other  prices,  but,  said  owners  wholly  failed,  either  them- 
selves or  by  or  through  their  agents,  or  otherwise,  or  at  all,  to  elect  to  take 
said  work  or  to  enter  into  any  contract  therefor. 

XVIII. 

That  thereafter,  to  wit,  on  the  -14th  day  of  April,  1890,  at  said  city,  the 
superintendent  of  streets  of  said  city,  pursuant  to  said  award,  and  in  his 
ollicial  capacity  as  such  superintendent  of  streets,  duly  entered  into,  made, 
and  executed  to  and  with  plaintiff  a  contract  for  said  work,  at  the  prices 
specified  in  plaintiff's  said  bid.  Said  contract  was  then  and  there  duly 
signed,  entered  into  and  executed  by  plaintiff. 

XIX. 

That  the  plaintiff,  at  the  time  of  executing  said  contract,  executed  a 
bond  to  the  satisfaction  and  approval  of  the  said  superintendent  of  streets, 


STREET   WORK   LAW — FORMS 

with  two  good  and  sufficient  sureties,  and  payable  to  said  city,  in  the  sum 
of  three  thousand  dollars,  coin  of  the  United  States  of  America,  conditioned 
for  the  faithful  performance  of  said  contract.  Said  sum  of  three  thousand 
dollars,  was  the  sum  deemed  adequate  by  the  mayor  of  said  city  and  fixed 
by  him  for  that  purpose.  Said  sureties,  each  for  himself,  justified  in  double 
the  said  amount  mentioned  in  said  bond,  over  and  above  all  statutory 
exemptions,  before  Fred  Harkness,  a  notary  public,  duly  commis- 
sioned and  appointed  in  and  for  the  county  of  Los  Angeles,  in  said  state, 
and  competent  to  administer  oaths.  Said  bond  was  thereupon  duly 
accepted  by  said  superintendent  of  streets,  and  placed  on  file  and  recorded 
in  his  office. 

That  said  contract  and  bond  were  in  the  words  and  figures  of  the  copies 
thereof,  which  are  hereto  attached,  marked  exhibits  "A"  and  "B",  and 
made  a  part  of  this  cause  of  action  and  complaint. 

NOTE:  If  the  pleader  does  not  choose  to  plead  the  contract  in  haec  verba,  but  elects  to 
plead  it  according  to  its  legal  effect,  he  must  be  careful  to  see  that  he  alleges  that  the  contract 
contained  each  of  those  provisions  which,  by  section  0  of  the  act  it  is  'required  to  contain,  i.  e., 
for  example,  a  clause  that  the  work  shall  be  done  under  the  direction  and  to  the  satisfaction 
of  the  superintendent  of  streets,  etc. 


That,  before  the  execution  of  said  contract,  and  after  said  award,  the 
plaintiff  advanced  to  and  deposited  with  the  said  superintendent  of  streets, 
for  payment  by  him,  the  cost  of  the  publication  of  all  notices,  resolutions, 
orders,  and  all  other  incidental  expenses  and  matters  required  under  the 
proceedings  prescribed  in  an  act  of  the  legislature  of  the  state  of  California, 
entitled  "An  act  to  provide  for  work  upon  streets,  lanes,  alleys,  courts, 
places  and  sidewalks,  and  for  the  construction  of  sewers  within  municipal- 
ities," approved  March  18,  1885,  and  likewise  the  cost  of  such  other 
notices  as  might  thereafter  be  deemed  requisite  by  the  said  city  council, 
viz,  the  sum  of  fifty  dollars. 

XXI. 

That  thereafter,  and  within  the  time  fixed  by  said  superintendent  of 
streets,  and  by  said  contract  for  the  completion  of  the  same,  the  plaintiff 
did  all  the  work  in  said  contract  and  specifications  mentioned,  and  duly 
performed  all  the  conditions  therein  contained,  on  his  part  to  be  performed, 
under  the  direction  and  to  the  satisfaction  of  said  superintendent  of 
streets,  and  with  the  materials  required  by  him  and  called  for  by  said 
specifications,  and  duly  fulfilled  said  contract  to  the  satisfaction  of  said 
superintendent  of  streets, 

XXII. 

That,  pursuant  to  the  terms  of  said  contract,  the  total  contract  cost  of  the 
work  performed  thereunder  by  plaintiff,  at  the  prices  stated  in  said  contract, 

amounted  to  the  sum  of  $ j  that  the  incidental  expenses  incurred  in 

connection  therewith  and  paid  by  plaintiff,  viz.,  the  expenses  of  printing 
and  publishing  said  resolutions  and  orders,  special  inspector's  fees  (and 
such  other  incidental  expenses  as  may  have  been  incurred,)  amounted  to 

the  sum   of  $ ,  making  a  total  of  $ ,  assessable  against  the  lots 

and  lands  liable  to  assessment. 


FORMS    UNDER    THE    VROOMAN    ACT 

XXIII. 

.  That  thereafter,  to  wit,  on  the  23rd  day  of  August,  1890,  the  said  super- 
intendent of  streets  duly  made  and  issued  an  assessment  to  cover  the  sum 
due  for  the  work  performed  and  specified  in  said  contract,  including  all 
incidental  expenses,  to  wit.  the  said  sum  of—  — dollars.  Said  assessment 
assessed  said  sum  of  -  — dollars  upon  all  the  lots  and  lands  fronting 

upon  said  —      —  street,  from  said line  of  —      —  street  to  said line 

of  —     —  street,  and  assessed  each  lot  and  portion  of  a  lot  separately,  in  pro- 
portion to  the  frontage  of  each  such  lot  and  portion  of  a  lot,  at  a  rate  per 
front   foot  sufficient  to  cover  the  total  expense  of  the  work,  to  wit,  at 
— dollars  and cents  per  front  foot. 


That  s'lid  assessment  briefly  referred  to  said  contract,  the  work  con- 
tracted for  and  performed,  and  showed  the  amount  to  be  paid  for  said  work 
under  said  contract,  together  with  all  incidental  expenses,  likewise  the 
rate  per  front  foot  assessed,  and  the  amount  of  each  assessment.  The 
name  of  each  and  every  owner  of  each  lot  and  of  each  portion  of  a  lot,  so 
assessed  as  aforesaid,  was  unknown  to  the  said  superintendent  of  streets, 
and  the  word  "unknown"  was  written  opposite  the  number  of  each  lot, 
portion  and  portions  of  a  lot,  assessed  as  aforesaid.  Said  assessment  like- 
wise showed  the  amount  assessed  upon  each  lot  and  portion  of  a  lot 
assessed,  also  the  number  of  each  lot,  portion  and  portions  of  a  lot  assessed. 
Said  assessment  was  signed  by  said  superintendent  of  streets,  and  had 
attached  thereto  a  diagram  exhibiting  each  street,  street  crossing,  avenue, 
lane,  alley,  place  and  court  on  which  any  of  said  work  was  done,  and 
showing  the  n-lative  location  of  each  district,  lot  and  portion  of  lot  assessed, 
to  the  work  done,  and  numbered  to  correspond  with  the  said  numbers  in 
said  assessment,  and  showing,  likewise,  the  number  of  lots  assessed  for 
said  work  contracted  for  and  performed,  and  the  number  of  feet  fronting 

upon  said  —      —  street,  from  said line  of street  to  said line 

of street,  to  wit,  feet. 

xxv. 

That  by  said  assessment  and  diagram  the  lot  owned  by  defendant,  and 
described  in  paragraph  number  I  of  this  com  plaint,  was  separately  assessed, 
in  proportion  to  the  frontage,  and  at  a  rate  per  front  foot  sufficient  to  cover 
the  total  expense  of  said  work,  viz :  at  $ —  —  per  front  foot.  That  the 

frontage  of  said  lot  is feet,  and  the  total  amount  so  assessed  against 

said  lot  and  shown  by  said  assessment  to  be  assessed  thereon,  is  the  sum 

of  $ .     Said  lot  was  assessed  as  the  property  of  ''unknown,"  the  name 

of  the  owner  of  said  lot  being  then  and  there  unknown  to  said  superin- 
tendent of  streets.  The  word  "unknown"  was  written  opposite  the  num- 
ber of  said  lot.  The  number  of  said  lot  is  number ,  and  said  number 

was  shown  by  said  assessment  to  be  the  number  of  said  lot. 

XXVI. 

That,  to  said  assessment  and  diagram  was  attached  a  warrant,  dated  the 
23rd  day  of  August,  189(9,  duly  issued  and  signed  by  the  superintendent  of 


68(Z  STREET    WORK    LAW — FORMS 

streets  of  said  city,  in  his  official  character  as  such,  and  duly  countersigned 
by  the  mayor  of  said  city,  in  his  official  character  as  such.     Said  warrant 
was  in  the  words  and  figures  following,  to  wit: 
[Here  insert  warrant.] 

XXVII. 

That  thereafter,  to  wit,  on  the  23rd  day  of  August  189(9,  said  warrant, 
assessment  and  diagram,  together  with  the  certificate  of  the  city  engineer 
of  said  city,  relating  to  said  work,  were  duly  recorded  by  the  said  superin- 
tendent of  streets  in  his  office  in  a  book  kept  by  him  for  that  purpose,  viz., 
volume  page  of  the  assessment  records,  and  said  record  was  duly 
authenticated  with  his  certificate  of  recordation  signed  and  subscribed  by 
the  said  superintendent  of  streets  in  his  own  name. 

XXVIII. 

That  thereafter,  to  wit,  on  the  23rd  day  of  August,  189#,  and  after  the 
payment  to  said  superintendent  of  streets  of  all  incidental  expenses  not 
previously  paid  by  plaintiff  or  his  assigns,  said  warrant,  assessment,  dia- 
gram, and  certificate,  after  the  recording  of  the  same  as  aforesaid,  were 
duly  delivered  by  said  superintendent  of  streets  to  plaintiff,  contractor  as 
aforesaid,  on  his  demand  therefor. 

XXIX. 

That  thereafter,  to  wit,  on  the  21st  day  of  September,  1890,  between  the 
hours  of  9  o'clock  A.M.  and  5  o'clock  P.M.  of  that  day,  one  JohnJ. 
O'Brien,  as  the  agent  of  this  plaintiff,  thereunto  duly  authorized  by 
plaintiff,  with  the  said  warrant,  assessment,  diagram  and  certificate,  did 
publicly,  for  and  on  behalf  of  this  plaintiff,  and  as  such  agent,  go  upon  the 
said  premises  owned  by  defendant  and  assessed  as  aforesaid,  viz.,  the 
premises  described  in  paragraph  number  I  of  the  complaint,  and  did  then 
and  there,  while  upon  said  premises,  between  the  hours  aforesaid,  and  as 
such  agent,  publicly  and  in  a  loud  and  audible  voice,  demand  payment  of 
the  said  amount  so  assessed  upon  and  against  said  premises  as  aforesaid? 
to  wit,  said  sum  [of dollars. 

XXX. 

That  thereafter,  to  wit,  on  the  21st  day  of  September,  1890,  and  within 
thirty  days  from  the  date  of  said  warrant,  the  said  warrant  was  duly 
returned  to  the  said  superintendent  of  streets,  with  a  return  endorsed 
thereon ;  said  return  was  signed  by  said  John  J.  O'Brien  on  behalf  of  this 
plaintiff,  and  was  verified  by  him,  in  the  said  city  of  Los  Angeles  upon  his 
oath  taken  and  sworn  to  before  Fred.  Harkness,  a  notary  public  duly 
appointed  and  commissioned  in  and  for  the  said  county  of  Los  Angeles. 
Said  return  stated  whether  any  of  the  said  assessments  remained  unpaid, 
in  whole  or  in  part,  and  the  amount  thereof,  and  stated  the  nature  and 
character  of  the  demand  as  set  forth  above,  namely,  that  the  same  was 
made  by  said  John  J.  O'Brien,  as  agent  of  this  plaintiff,  publicly,  and  on 
said  above  described  premises,  and  for  the  amount  so  assessed  upon  said 
premises  as  aforesaid,  and  at  the  time  aforesaid,  and  that  said  sum  of 


FORMS    UNDER    THE    VROOMAN    ACT  69a 

money  so  assessed  on  the  lot  above  described  as  aforesaid  remained  unpaid, 
though  demand  was  made  therefor  ab  aforesaid. 

XXXI. 

That  thereupon  and  thereafter,  to  wit,  on  said  21st  day  of  September, 
1890,  said  superintendent  of  streets  duly  recorded  the  said  return  in  the 
margin  of  the  said  record  of  said  warrant  and  assessment,  and  authentica  - 
ted  said  record  with  his  certificate  of  recordation  signed  and  subscribed  in 
his  name  l>y  himself.  At  the  same  time  and  place,  said  superintendent 
likewise  duly  recorded  the  original  contract,  referred  to  in  said  assessment, 
at  full  length  in  a  book  kept  by  him  for  that  purpose  in  his  office,  and 
authenticated  said  record  of  said  contract  with  his  certificate  of  recordation 
signed  and  subscribed  in  his  name  by  himself. 

XXXII. 

That  more  than  thirty-five  days  have  elapsed  from  the  day  of  the  date  of 
said  warrant,  and  no  person  whatever  has  appealed  to  said  city  council 
from  or  concerning  any  act  of  said  contractor,  or  concerning  said  work,  or 
from  or  concerning  any  act,  proceeding  or  determination  of  said  superin- 
tendent of  streets  in  relation  to  said  work,  contract,  diagram,  assessment, 
or  warrant,  or  either  or  any  of  them, or  concerning  any  other  act,  proceed- 
ing or  determination  of  said  superintendent  of  streets  whatever,  or  con- 
cerning any  proceeding  or  proceedings  prior  to  said  assessment,  or  in  the 
matter  of  or  relating  to  said  warrant,  assessment,  diagram  or  work,  and 
that  no  written  or  other  objection  to  said  acts  or  proceedings,  or  to  either 
or  any  of  them,  or  to  any  part  thereof,  has  ever  at  any  time  been  filed  with 
the  clerk  of  said  city  council. 

XX. VIII. 

That  each  and  every  act  heretofore  alleged  to  have  been  done  or  per- 
formed by  the  superintendent  of  streets,  the  mayor  or  the  city  clerk  of  said 
city,  was  duly  done  and  performed  by  the  duly  elected,  qualified  and  acting 
upcrmtt'inli'nt,  mayor  and  city  clerk,  respectively,  of  the  city  of  Los 
s,  state  of  California,  acting  in  his  official  capacity  as  such,  and  that 
each  and  every  act,  order,  resolution  or  determination  hereinbefore  alleged  to 
have  been  given,  made,  done  or  performed  by  the  city  council  of  said  city, 
was  duly  given  and  made,  done  and  performed  by  the  duly  elected,  quali- 
fied and  acting  city  council  of  the  city  of  Los  Angeles,  state  of  California. 

xxxiv. 

That  all  the  several  acts  and  proceedings  required  to  be  done  by  said  city 
council,  said  superintendent  of  streets,  said  mayor,  said  city  clerk  and  this 
plaintiff,  have  been  duly  done,  made  and  performed  by  it  and  them  in  the 
manner  and  at  the  times  and  in  the  form  required  by  law,  under  the  pro- 
visions of  the  act  of  the  legislature  of  the  state  of  California  entitled  "An 
act  to  provide  for  work  upon  streets,  lanes,  alleys,  courts,  places  and  side- 
walks, and  for  the  construction  of  sewers  within  municipalities,"  approved 
March  18,  1885,  as  the  said  act  had  been  amended  by  all  amendatory  and 
supplementary  acts  thereto  passed  by  said  legislature  and  in  force  at  the 


70&  STREET  WORK  LAW FORMS 

time  when  said  acts  and  proceedings  of  said  city  council,  superintendent  of 
streets,  mayor  and  plaintiff  were  made,  done  or  performed. 

NOTE:  Paragraph  XXXIV  is  taken  from  the  complaint  passed  upon  by  the  Supremo 
Court  in  the  case  of  Bituminous  Lime  Rock  Paving  and  Imp.  Co.  v.  Fulton,  33  Pac.  Rep. 
1117,  where  it  was  held  that  certain  defects  in  the  allegations  in  regard  to  certain 
jurisdictional  pierequisites,  such  as  publication  of  notices,  etc.,  were  cured  by  the 
twelfth  paragraph  of  the  complaint  in  that  case,  which  was  in  all  respects  substantially 
the  same  as  paragraph  XXXIV  supra.  And,  although  the  general  sweeping  allegation 
in  paragraph  XXXIV  may  not  be  regarded  as  a  model  of  neatness  or  of  concise  and  sci- 
entific pleading,  yet,  as  it  seemed  to  rescue  the  complaint  filed  in  the  case  just  referred 
to,  the  practitioner  who  adopts  it  as  a  part  of  his  pleading  may  not  go  very  far  amiss  in 
doing  so— especially  in  view  of  the  many  pitfalls  which  seem  to  lie  in  the  path  of  those 
whose  duties  require  them  to  proceed  under  the  street  improvement  acts. 

xxxv. 

That  the  said  sum  of  —  —  dollars,  so  assessed  by  said  superintendent  of 
streets  upon  said  above  described  lot  and  parcel  of  land,  as  aforesaid,  viz., 
the  premises  owned  by  defendant  and  described  in  paragraph  number  I  of 
this  complaint,  has  not  been  paid,  nor  any  part  thereof,  but,  although 
demand  for  the  payment  of  said  sum  has  been  made  as  aforesaid,  the  whole 
thereof  still  remains  and  is  due  and  unpaid,  with  interest  thereon  at  the 
rate  of  ten  per  cent,  per  annum  from  the  said  21st  day  September,  1890,  the 
date  of  the  said  return  of  said  warrant  and  assessment. 

XXXVI. 

That  before  this  suit  was  commenced,  to  wit,  on  the day  of ,  1890, 

at  said  city,  the  plaintiff  made  a  personal  demand  upon  the  defendant,  for 

the  payment  of  said   sum  of dollars,   assessed,  upon  the  lots   and 

lands  described  in  paragraph  I  of  this  complaint,  as  aforesaid,  but,  not- 
withstanding such  personal  demand,  said  defendant  then  and  there  refused 
to  pay  said  sum,  or  any  part  thereof,  and  still  refuses  to  pay  the  same,  or 
any  part  thereof. 

NOTE:  Where  the  property  is  assessed  to  "unknown,"  no  personal  demand  is  neces- 
sary; in  fact,  it  i»  unavailing,  in  such  case  as  a  means  of  perfecting  plaintiff's  right  of 
action  upon  the  assessment.  For  that  purpose,  a  demand  made  publicly  upon  the 
premises  is  indispensable,  where  the  property  has  been  assessed  to  "unknown." 
Macadamizing  Co.  v.  Williams,  70  Cal.  534.  But,  by  section  12  of  the  act,  it  is  provided 
that  "When  a  suit  has  been  brought,  after  a  personal  demand  has  been  made  and  a 
refusal  to  pay  such  assessment  so  demanded,  the  plaintiff  shall  also  be  entitled  to  have 
and  receive  said  sum  of  fifteen  dollars  as  attorney's  fees,  in  addition  to  all  taxable  costs, 
notwithstanding  that  the  suit  may  be  settled  or  a  tender  be  made  before  a  recovery  in 
said  action,  and  he  may  have  judgment  therefor." 

Wherefore  plaintiff  prays: 

1.  For  a  judgment  for  the  sum  of dollars,  with  interest  thereon  at 

the  rate  of  ten  per  cent,  per  annum  from  the  21st  day  of  September,  1890, 
until  entry  of  judgment. 

2.  That  said  sum  with  such  interest  to  the  date  of  entry  of  judgment, 
together  with  costs  and  $15.00  for  attorney's  fees,  be  adjudged  to  be  a  lien 
upon  the  lot  of  land  described  in  paragraph  number  I  of  this  complaint, 
and  liable  for  the  payment  of  the  same. 

3.  That  a  decree  in  due  form  may  be  made  for  the  sale  of  said  lot  by  the 
sheriff  of  the  county  of  Los  Angeles,  state  of  California,   according  to  law 
and  the  practice  of  this  court,  and  the  proceeds  of  the  sale  be  applied  in 
payment  of  the  amount  found   due    to   the   plaintiff,    with    costs,   and 
attorney's  fees,  and  costs  of  sale. 


FORMS  UNDER  THE  VROOMAN  ACT 

4.  That  the  defendant  and  all  persons  claiming  under  him,  subsequent 
to  the  commencement  of  this  action,  either  as   purchasers,  incumbrancers 
or  otherwise,  be  barred  and   foreclosed  of  all  right,   claim  or  equity  of 
redemption  in  the  said  premises,  and  every  part  thereof. 

5.  That  any  party  of  this  suit  may  become  a  purchaser  at  such  sale. 

6.  That  plaintiff  be  allowed  $15.00  in  .addition  to  the  taxable  costs,  as 
attorney's  fees. 

7.  That  plaintiff  may  have  such  other  and  further  relief  as  the  case  may 
require,  and  as  to  the  court  may  seem  just  and  equitable. 


Attorney  for  Plaintiff. 
No.  17.   ORDINANCE  OF  INTENTION  TO  CHANGE  GRADE. 

ORDINANCE   NO.    1921,  (new  SERIES.) 

An  ordinance  declaring  the  intention  of  the  mayor  and  city  council  of 
the  city  of  Los  Angeles  to  change  and  establish  the  grade  of  Grand  Avenue 
from  Fourth  street  to  Fifth  street,  and  describing  and  establishing  the  dis- 
trict to  be  benefited  by  such  change  of  grade,  and  to  be  assessed  to  pay  the 
cost,  damages  and  expenses  thereof. 

The  mayor  and  council  of  the  city  of  Los  Angeles  do  ordain  as  follows: 

SECTION  1.  That  it  is  the  intention  of  the  city  council  of  the  city  of  Los 
Angeles  to  change  and  establish  the  grade  of  Grand  Avenue  in  said  city  from 
Fourth  street  to  Fifth  street,  as  follows : 

At  the  intersection  of  Fourth  street  the  grade  shall  be  115.50  on  the  south- 
east corner  and  118.00  on  the  southwest  corner;  at  a  point  270  feet  south  from 
the  southeast  corner  of  Fourth  street  93.80  on  the  east  side  and  94-00  on  the  west 
side;  at  a  point  474  feet  south  from  the  southeast  corner  of  Fourth  street  58.00  on 
the  east  side;  at  the  intersection  of  Fifth  street,  38.00  on  the  northeast  corner 
and  45.00  on  the  northwest  corner. 

And  at  all  points  between  said  designated  points  the  grade  shall  be  estab- 
lished so  as  to  conform  to  a  straight  line  drawn  between  said  designated 
points. 

The  numbers  used  above,  where  their  meaning  is  not  shown  to  be  other- 
wise by  their  immediate  context,  mean  the  number  of  feet  which  the  points 
designated,  in  the  proposed  new  grade,  shall  be  above  the  city  datum  plane. 

SEC.  2.  The  district  to  be  benefited  by  said  change  of  grade  and  to  be 
assessed  to  pay  the  cost  of  the  same,  is  hereby  designated  and  established 
as  follows : 

Beginning  at  the  northeast  corner  of  Fifth  street  and  Grand  avenue,  thence 
easterly  along  the  northerly  line  of  Fifth  street  to  the  southeast  corner  of  lot  11, 
block  107,  Bellevue  Terrace  tract;  thence  to  the  northeast  corner  of  lot  7,  block  N, 
Afott  tract;  thence  westerly  along  the  southerly  line  of  Fourth  street  to  the  north- 
west corner  of  lot  5,  block  3/,  of  the  Mott  tract;  thence  to  the  present  southwest 
corner  of  lot  2,  block  108,  of  the  Bellevue  Terrace  tract;  thence  easterly  along  the 
northerly  line  of  Fifth  street  to  the  northwest  corner  of  Fifth  street  and  Grand 
avenue;  thence  across  Grand  Avenue  to  the  point  of  beginning,  excepting  there- 
from any  public  street  or  alley  that  may  lie  within  the  above  described 
district. 


72a  STREET  WORK  LAW FORMS 

SEC.  3.  The  city  clerk  shall  certify  to  the  passage  of  this  ordinance,  and 
shall  cause  the  same  to  be  published  for  ten  days  in  the^os  Angeles  Herald, 
a  daily  newspaper  published  and  circulated  in  said  city,  and  hereby  design- 
ated for  said  purpose,  in  the  manner  required  by  law,  in  every  regular 
issue  of  said  newspaper,  during  said  period  of  ten  days.  Said  Los  Angeles 
Herald  is  the  newspaper  in  which  the  official  notices  of  this  city  council 
are  usually  printed  and  published. 

SEC.  4.  The  superintendent  of  streets  is  hereby  ordered  and  directed, 
within  five  days  after  the  first  publication  of  this  ordinance,  to  cause  to  be 
conspicuously  posted,  in  the  manner  and  form  required  by  law,  within  the 
said  district,  notices  of  the  passage  of  this  ordinance. 

I  hereby  certify  that  the  foregoing  ordinance  was  adopted  by  the  council 
of  the  city  of  Los  Angeles,  at  its  meeting  of  November  13,  1893,  by  the  fol- 
lowing vote : 

Ayes  :  Messrs.  Gaffey,  Innes,  Munson,  Nickell,  Pessell  and  President  Teed. 
Noes  :  Messrs.  Campbell,  Rhodes  and  Strohm. 

C.  A.  LUCKENBACH, 

City  Clerk. 
Approved  this  17th  day  of  November,  1895. 

T.  E.  ROWAN, 

Mavor. 


No.  18.    NOTICE  OP  PASSAGE  OF  ORDINANCE  OF  INTENTION  TO  CHANGE  GRADE. 

NOTICE   OF    STREET   WORK. 

Notice  is  hereby  given  that  on  Monday  the  13th  day  of  November,  A.  D. 
1895,  the  city  council  of  the  city  of  Los  Angeles  did,  at  its  meeting  on  said 
day,  pass  an  ordinance  of  intention,  numbered  1921  (new  series,)  to  change 
and  establish  the  grade  of  Grand  Avenue  in  said  city  from  fourth  street  to 
Fifth  street,  as  follows  : 

[Here  insert  the  description  in  ordinance  of  intention,  Form  No.  17.] 
The  district  declared  by  said  ordinance  to  be  benefited  by  said  change  of 
grade  and  to  be  assessed  to  pay  the  cost  of  the  same,   is  described  as  fol- 
lows, to  wit: 

[Here  insert  the  description  in  ordinance  of  intention.  Form  No.  17.] 
Reference  is  hereby  made  to  said  ordinance  of  intention  for  further  par- 
ticulars. 

D.  A.  WATSON, 
Superintendent  of  streets  of  the  city  of  Los  Angeles. 


No.  19.     ORDINANCE  CHANGING  AND  ESTABLISHING  GRADE. 

ORDINANCE  NO.  2000,  (new    SERIES.) 

An  ordinance  declaring  the  grade  of   Grand  Avenue  to  be  changed  from 
Fourth  street  to  Fifth  street,  and  establishing  the  grade  of  the  same. 
The  city  council  of  the  city  of  Los  Angeles,  having  on  the  13th  day  of 


FORMS    UNDER    THE    VROOMAN    ACT 

November,  1895,  duly  passed  an  ordinance  to  change  and  establish  the  grade 
of  said  Grand  Avenue  from  Fourth  street  to  Fifth  street,  and  describing  and 
establishing  the  district  to  be  benefited  by  such  change  of  grade  and  to  be 
assessed  for  the  cost  of  the  same,  and  the  superintendent  of  streets  having 
caused  notices  of  the  passage  of  said  ordinance  of  intention  to  be  conspicu- 
ously posted  within  said  district,  in  the  manner  and  form  required  by  law, 
and  no  objection  to  said  proposed  change  or  changes  or  modifications  of 
grade  having  been  filed  with  the  clerk  of  the  council,  and  the  petition  of 
the  owners  of  a  majority  of  the  property  affected  by  said  proposed  change 
of  grade  having  been  duly  filed  with  the  clerk  and  presented  to  this  city 
council, 

The  mayor  and  city  council  of  said  city  of  Los  Angeles  do  now  ordain  as 
follows  : 

The  grade  of  Grand  Avenue  from  Fourth  street  to  Fifth  street  is  declared 
to  be  and  the  same  hereby  is  changed  and  established,  in  conformity  with 
said  ordinance  of  intention,  as  follows: 

At  the  intersection  of  Fourth  street,  etc.  [Follow  description  in  form  17.] 

I  hereby  certify  that  the  foregoing  ordinance  was  passed  by  the  city 
council  of  the  city  of  Los  Angeles,  on  the  20th  day  of  December,  1895,  by 
the  following  vote: 

Ayes  :  Messrs.  Gaffey,  Innes,  Munson,  Nickell,  Pessell,  and  President  Teed. 

Noes  :  Messrs.  Campbell,  Rhodes  and  Slrohm. 

C.  A.  LUCKENBACH, 
City  clerk  and  ex  officio  clerk  of  the  city  council  of  the  city  of  Los  Angeles. 

Approved  this  20th  day  of  December.  1895. 

T.  E.  ROWAN, 
Mayor  of  the  city  of  Los  Angeles. 


OF  THE 

UNIVERSITY 


74a  STREET  WORK  LAW — FORMS 

FORMS  USED    UNDER  THE  BOND  ACT. 

No.  1.     KESOLUTION  DIRECTING  ENGINEER  TO  FURNISH  ESTIMATES. 
RESOLUTION  NO.  1938,  (new  SERIES.) 

Resolved,  by  the  city  council  of  the  city  of  Los  Angeles,  state  of  California, 
that  the  city  engineer  of  said  city  be,  and  he  hereby  is,  directed  to  furnish 
to  this  city  council  estimates  of  the  cost  per  front  foot  of 
the  following  street  work  along  each  line  of  Omar  avenue 
in  said  city,  from  the  southerly,  line  of  Third  street  to  the  north- 
erly line  of  Fourth  street,  including  the  cost  of  intersection  work  assessable 
upon  said  frontage,  viz:  Grading  and  graveling  said  Omar  avenue 
from  said  southerly  line  of  Third  street  to  said  northerly  line 
of  Fourth  street,  including  all  intersections  of  streets,  (excepting  such 
portions  of  said  street  and  intersections  as  are  required  by  law  to  be  kept 
in  order  or  repair  by  any  person  or  company  having  railroad  tracks  there- 
on, and  also  excepting  such  portions  as  have  been  graded,  graveled  and 
accepted)  in  accordance  with  the  plans  and  profile  on  file  in  the  office  of 
the  city  engineer  and  specifications  on  file  in  the  office  of  the  city  clerk  of 
said  city  for  graveled  streets,  said  specifications  being  numbered  five. 

Said  estimates  to  be  thus  furnished  in  accordance  with  the  provisions  of 
an  act  of  the  legislature  of  the  state  of  California,  approved  February  27, 
1893,  authorizing  the  issuance  of  serial  bonds  to  represent  the  cost  of  cer- 
tain street,  work  or  improvements,  for  the  purpose  of  enabling  this  city 
council  to  determine  whether  bonds  may  be  issued  to  represent  the  cost  of 
the  above  described  wo^k  or  improvement. 

I  hereby  certify  that  the  foregoing  resolution  was  passed  by  the  city 
council  of  the  city  of  LosAngeles,  on  the  13th  day  of  November,  1895,  by  the 
following  vote : 

Ayes:  Messrs.  Campbell,  Gaffey,  Innes,  Munson,  Nickell,  Pessell,  Rhodes, 
Strohm,  and  President  Teed. 

Noes:     None. 

C.  A.  LUCKENBACH, 
City  clerk  and  ex  officio  clerk  of  the  city  council  of  the  city  of  Los  Angeles. 


No.  2.     RESOLUTION  OF  INTENTION. 

A  resolution  of  the  city  council  of  the  city  of  Los  Angeles,  declaring  its 
intention  to  improve  a  portion  of  Omar  avenue,  and  that  bonds  shall  be 
issued  to  represent  the  cost  thereof. 

RESOLUTION  NO.  737.    (ri€W  SERIES.) 

Resolved,  by  the  city  council  of  the  city  of  Los  Angeles,  state  of  Califor- 
nia, that  it  is  the  intention  of  this  city  council  to  order  the  following  street 
work  to  be  done  in  said  city,  to  wit :  That  Omar  avenue  in  said  city, 
from  the  southerly  line  of  Third  street  to  the  northerly  line  of  Fourth  street, 
including  all  intersections  of  streets,  (excepting  such  portions  of  said  street 


FORMS    UNDER    THE    BOND    ACT  75& 

and  intersections  as  are  required  by  law  to  be  kept  in  order  or  repair  by 
any  person  or  company  having  railroad  tracks  thereon,  and  also  excepting 
such  portions  as  have  been  graded,  graveled,  and  accepted,)  be  graded  and 
graveled  in  accordance  with  the  plans  and  profile  on  file  in  the  office  of  the 
city  engineer  and  specifications  on  file  in  the  office  of  the  city  clerk  of  the 
city  of  Los  Angeles  for  graveled  streets,  said  specifications  being  numbered 
fire. 

The  city  engineer  of  said  city  having  estimated  that  the  total  cost  of  said 
improvement  will  be  greater  than  one  dollar  per  front  foot  along  each  line 
of  said  portion  of  said  street  so  proposed  to  be  improved  as  aforesaid,  includ- 
ing the  cost  of  intersection  work  assessable  upon  said  frontage,  it  is  hereby 
determined  and  declared  in  pursuance  of  an  act  of  the  legislature  of  the 
state  of  California,  approved  February  27,  1893,  that  serial  bonds  shall  be 
issued  to  represent  the  expenses  of  said  proposed  improvement.  Said  bonds 
shall  be  serial,  extending  over  a  period  of  ten.  years  from  their  date ;  and 
shall  be  issued  in  the  manner  and  form  provided  by  said  act  approved  Feb- 
ruary 27,  1893;  an  even  annual  proportion  of  the  principal  sum  thereof 
shall  be  payable  by  coupons  on  the  second  day  of  January  of  each  year  after 
their  date,  until  the  whole  is  paid,  and  said  bonds  shall  bear  interest  at  the 
rate  of  7  per  cent,  per  annum  on  all  sums  unpaid,  until  the  whole  of  said 
principal  and  interest  are  paid;  said  interest  shall  be  payable  semi-annu- 
ally  on  the  second  days  of  January  and  July  respectively,  of  each  and  every 
year. 

The  Los  Angeles  Herald,  a  daily  newspaper  published  and  circulated  in 
said  city,  is  hereby  designated  as  the  newspaper  in  which  this  resolution 
of  intention  and  notice  of  the  passage  thereof  shall  be  published  in  the 
manner  and  by  the  persons  required  by  law. 

The  superintendent  of  streets  of  said  city  is  hereby  directed  to  post 
notices  of  the  passage  of  this  resolution  in  the  manner  and  in  the  form 
required  by  law,  and  to  cause  a  similar  notice  to  be  published  for  six  days 
in  said  newspaper,  in  ihe  manner  required  by  law.  Said  notices,  posted 
and  published,  shall  describe  said  bonds  and  specify  said  rate  of  interest ,  in 
the  manner  required  by  law  in  such  cases. 

The  city  clerk  of  said  city  is  hereby  directed  to  post  this  resolution  of 
intention  conspicuously  for  two  days  on  or  near  the  council  chamber  door 
of  this  council,  and  to  cause  the  same  to  be  published  by  two  insertions, 
in  the  manner  required  by  law,  in  said  daily  newspaper. 

I  hereby  certify  that  the  foregoing  resolution  was  passed  by  the  council 
of  the  city  of  Los  Angeles,  at  its  meeting  of  November  Z7,  A.  D.  1895,  by  the 
following  vote : 

Ayes:  Messrs.  Campbell,  Gaffey,  Innes,  Munson,  Pessell,  Rhodes  and 
Strohm—7. 

Noes  t  None. 

C.A.LUCKENBACH, 

City  clerk  and  ex  officio  clerk  of  the  city  council  of  the  city  of  Los  Angeles. 


76a  STREET  WORK  LAW FORMS 

No.  3.    NOTICE  OF  PASSAGE  OF  RESOLUTION  OF  INTENTION. 

NOTICE   OF    STREET   WORK. 

Notice  is  hereby  given  that  on  Monday,  the  27tli  day  of  November,  A.  D. 
1895,  the  city  council  of  the  city  of  Los  Angeles  did,  at  its  meeting  on  said 
day,  pass  a  resolution  of  intention,  numbered  1338, (new  series,)  to  order  the 
following  street  work  to  be  done,  to  wit : 

That  Omar  avenue  in  said  city,  from  the  southerly  line  of,  etc.  [Here  insert 
description  of  the  work,  as  in  preceding  form.] 

The  city  engineer  of  said  city  having  estimated  that  the  total  cost  of  said 
improvement  will  be  greater  than  one  dollar  per  front  foot  along  each  line 
of  said  portion  of  said  street,  so  proposed  to  be  improved  as  aforesaid, 
including  the  cost  of  intersection  work  assessable  upon  said  frontage,  it  was 
by  said  city  council  determined  in  and  by  its  said  resolution  of  intention* 
in  pursuance  of  an  act  of  the  legislature  of  the  state  of  California,  approved 
February  27, 1893,  that  serial  bonds  shall  be  issued  to  represent  the  expen- 
ses of  said  proposed  improvement.  Said  bonds  will  be  serial,  extending 
over  a  period  of  ten  years  from  their  date,  and  will  be  issued  in  the  manner 
and  form  provided  for  by  said  act  of  the  legislature ;  an  even  annual  pro- 
portion of  the  principal  sum  thereof  shall  be  payable,  by  coupon,  on  the 
second  day  of  January  of  each  year,  after  their  date,  until  the  whole  is  paid, 
and  said  bonds  will  bear  interest  at  the  rate  of  seven  per  cent,  per  annum 
on  all  sums  unpaid,  until  the  whole  of  said  principal  and  interest  are  paid. 
Said  interest  will  be  payable  semi-annually  by  coupon  on  the  second  days 
of  January  and  July  respectively  of  each  and  every  year. 

Reference  is  hereby  made  to  said  resolution  of  intention  for  further  par- 
ticulars. 

D.  A.  WATSON, 
Superintendent  of  Streets  of  the  city  of  Los  Angeles. 

No.  4.     RESOLUTION  ORDERING  THE  WORK. 

[Same  as  torm  No.  3,  under  the  Vrooman  act,  except  that  the  same 
description  of  the  bonds  and  specification  of  the  interest  that  is  contained 
in  the  resolution  of  intention  under  the  bond  act  is  to  be  inserted  in  the 
resolution  ordering  the  work.] 


No.  5.     NOTICE  INVITING  SEALED  PROPOSALS. 

[Same  as  form  No.  4,  under  the  Vrooman  act,  except  that  the  same 
description  of  the  bonds  and  specification  of  the  interest  that  is  contained 
in  the  notice  of  the  passage  of  the  resolution  of  indention  under  the  bond 
act,  is  to  be  inserted  in  the  notice  inviting  sealed  proposals.] 


No.  6.     CONTRACTOR'S  PROPOSAL  WITH  BOND. 
[Same  as  form  No.  5,  under  the  Vrooman  act.] 


FORMS    UNDER   THE    BOND   ACT 

No.  7.     RESOLUTION  OF  AWARD. 

[Same  as  form  No.  6,  under  the  Vrooman  act,  except  that  the  same 
description  of  the  bonds  and  specification  of  the  interest  that  is  contained 
in  the  resolution  of  intention,  under  the  bond  act,  is  to  be  inserted  in  the 
resolution  of  award.] 


No.  8.    NOTICE  OF  AWARD. 

[Same  as  form  No.  7,  under  the  Vrooman  act,  except  that  the  same 
description  of  the  bonds  and  specification  of  the  interest  that  is  contained 
in  the  notice  of  the  passage  of  the  resolution  of  intention,  under  the  bond 
act,  is  to  be  inserted  in  the  notice  of  award.] 


No.  9.    CONTRACT  AND  CONTRACTOR'S  BOND. 
[Same  as  form  No.  8  under  Vrooman  act.] 


No.  10.     ASSESSMENT  AND  DIAGRAM. 

[Same  as  forms  Nos.  11  and  12,  under  the  Vrooman  act.] 
In  the  margin  of  the  assessment  as  recorded  there  should  be  appropriate 
headings  to  enable  the  street  superintendent  to  endorse  upon  the  margin 
of  the  record  of  the  assessment,  to  the  credit  of  which  the  same  is  paid,  all 
coupon  payments  of  principal  upon  the  bonds  reported  to  him  by  the  city 
treasurer,  as  provided  for  by  section  4  of  the  bond  act. 


No.  11.    WARRANT. 

By  virtue  hereof,  I,  Drury  A.  Watson,  superintendent  of  streets  of  the 
city  of  Los  Angeles,  county  of  Los  Angeles,  and  state  of  California,  by 
virtue  of  the  authority  vested  in  me  as  said  superintendent  o?  streets,  do 
authorize  and  empower  Martin  C.  Marsh,  his  agents  or  assigns,  to  demand 
and  receive  the  several  assessments  upon  the  assessment  and  diagram 
hereto  attached,  and  this  shall  be  his  warrant  for  the  same.  Serial  bonds, 
bearing  interest  at  the  rate  of  seven  per  cent,  per  annum  and  extending 
over  a  period  of  ten  years  from  their  date,  are  to  be  issued  to  represent  the 
cost  and  expenses  of  the  work  described  in  the  assessment,  and  in  the  man- 
ner and  form  provided  by  an  act  of  the  legislature  of  the  state  of  California, 
approved  February  27,  1893;  and  notice  is  hereby  given  that  a  bond 
in  such  series  will  issue  to  represent  each  assessment  of  fifty  dollars  or 
more  remaining  unpaid  for  thirty  days  after  the  date  of  this  warrant,  or 


STREET  WORK  LAW FORMS 


five  days  after  the  decision  of  the  city  council  of  this  city  upon  an  appeal. 
Dated  Los  Angeles,  November  1st,  A.  D.  1895. 

DRURY  A.   WA TSON, 

[SEAL.]  Superintendent  of  streets  of  the  city  of  Los  Angeles. 

Countersigned  by:     T.  E.  ROWAN, 

Mayor  of  the  city  of  Los  Angeles. 
Recorded  November  1st,  A.  D.  1895. 

DRURY  A.  WATSON, 
Superintendent  of  streets  of  the  city  of  Los  Angeles. 


No.  12.  CONTRACTOR'S  KETURN. 
[Same  as  form  No.  14,  under  Vrooman  act.] 


No.  13.  CERTIFICATE  OF  RECORD. 
[Same  as  form  No.  15,  under  the  Vrooman  act]. 


No.  14. 


STREET  SUPERINTENDENT'S  CERTIFIED  LIST  OF  UNPAID 

ASSESSMENTS. 


TREASURER'S  LIST  OF  ASSESSMENTS. 
H.  J.  Shoulters,  City  Treasurer  of  the  City  of  Los  Angeles: 

I  hereby  certify  to  you  that  the  following  list  of  assessments,  dated 
October  30th,  1893,  "amounting  to  fifty  dollars  or  over,"  each  upon  their 
respective  assessment  or  diagram  numbers,  and  being  for  the  improve- 
ment of  Georgia  Bell  street,  between  the  south  line  of  Eighteenth  street  and 
the  north  line  of  Washington  street,  are  unpaid.  You  will  therefore  issue 
bonds  therefor,  as  provided  by  law  to  Conrad  Scheerer,  contractor,  extend- 
ing over  a  period  of  ten  years,  and  bearing  interest  at  the  rate  of  seven  per 
cent  per  annum  until  paid. 


ASSESSED  UPON. 

Total  Assessm'tou 

Assessme  nt  and 
Diagram  Number 

Dnte  of 
Delinquency 

REMARKS 

Assess- 

« 

1 

Tract 

No. 

-j 

« 

Dollars 

Cents 

1 

Unknown 

1 

B 

Bell  Tract 

159 

70 

Nov'r  30,  1895 

2 

Unknown 

2 

B 

Bell  Tract 

167 

59 

Nov'r  30,  1895 

Los  Angeles,  December  1st,  1895. 

D.  A.   WATSON, 

Street  Superintendent  of  the  City  of  Los  Angeles. 


FORMS    UNDER    THE    STREET   OPENING   ACT 

FORMS  USED  UNDER  THE  STREET  OPENING  ACT. 

No.  1.     RESOLUTION  DECLARING  INTENTION. 

RESOLUTION   OF   INTENTION,  NO.    1896,  (n€W   SERIES.) 

Resolved,  by  the  city  council  of  the  city  of  Los  Angeles,  state  of  California : 
1st.    That  it  is  the  intention  of  the  said  city  council  to  order  the  follow- 
ing street  work  to  be  done,  in  said  city,  to  wit: 
To  widen  First  street  in  said  city  of  Los  Angeles. 

2nd.  That  the  land  which  is  by  this  council  deemed  necessary  to  be 
taken  therefor,  and  which  this  council  intends  to  take  therefor,  is  described 
as  follows,  to  wit : 

All  that  certain  land  situated,  lying  and  being  in  said  city  of  Los  Angeles. 
and  particularly  described  as  follows : 

Beginning  at  a  point  on  the  northerly  line  of  First  street,  saidpoint  being  the 
southwest  corner  of  lot  4  of  the  subdivision  of  the  garden  of  J.  Murat,  recorded 
in  book  10,  page  8,  miscellaneous  records  of  Los  Angeles  county,  thence  easterly 
along  the  northerly  line  of  First  street  50  feet  and  6  inches  to  a  point,  thence 
northerly  on  a  line  parallel  with  and  six  inches  easterly  of  the  easterly  line  of 
said  lot  4,  8.81  feet  to  a  point  on  the  new  line  of  First  street,  thence  westerly  to 
a  point  on  the  westerly  line  of  said  lot  4,  said  point  being  7.13  feet  northerly 
from  the  south  irest  corner  of  said  lot  4,  thence  southerly  along  the  westerly  line  of 
said  lot  4,  to  the  point  of  beginning;  being  all  of  that  portion  of  lot  4  and  of  the 
y  .s/.r  inches  of  lot  5  of  said  Murat  garden  subdivision,  which  lies  between 
the  old  northerly  line  of  First  street  and  the  new  northerly  line  of  First  street, 
as  shown  by  a  map  adopted  by  said  city  council  at  its  meeting  of  December  16, 
1889,  and  now  on  file  in  the  office  of  the  city  clerk  of  said  city. 

3rd.  That  the  exterior  boundaries  of  the  district  hereby  established,  and 
the  exterior  boundaries  of  the  district  of  lands  hereby  declared  to  be 
affected  and  benefited  by  said  work  or  improvement,  and  to  be  assessed  to 
pay  the  damages,  cost  and  expenses  thereof,  are  described  as  follows, 
to  wit : 

Beginning  at  a  point  on  the  east  line  of  Los  Angeles  street,  in  the  city  of  Los 
Angeles,  said  point  being  10  feet  northerly  from  the  new  northerly  line  of  First 
street,  as  shown  by  said  map  adopted  by  the  city  council  Lecember  16,  1889, 
and  now  on  file  in  the  office  of  the  city  clerk,  thence  easterly  on  a  line  parallel 
with  the  new  northerly  line  of  First  street  as  shown  by  said  map  to  a  point  on 
the  westerly  line  of  Vine  street,  thence  easterly  on  a  line  parallel  with  said  new 
northerly  line  of  First  street  to  a  point  in  the  westerly  line  of  Alameda  street, 
thence  southerly  along  said  westerly  line  of  Alameda  street  to  a  point  10  feet 
distant  southerly  from  the  new  southerly  line  of  First  street,  as  shown  by  said  map, 
thence  westerly  on  a  line  parallel  with  the  new  southerly  line  of  First  street  to  a 
point  in  the  easterly  line  of  San  Pedro  street,  thence  northerly  to  the  southwest 
corner  of  the  Valla  block,  thence  to  the  point  of  beginning-  excepting  therefrom 
the  land  in  section  1  hereof,  described  as  the  land  to  be  taken  for  widening  said 
First  street,  and  excepting  also  any  land  within  said  boundaries  contained, 
which  is  now  part  of  a  public  street  or  alley. 


80a  STREET  WORK  LAW FORMS 

The  Los  Angeles  Herald,  a  daily  newspaper  published  and  circulated  in 
said  city,  is  hereby  designated  as  the  newspaper  in  which  the  street  super- 
intendent of  said  city  shall  cause  to  be  published,  in  the  manner  and  form 
required  by  law,  notice  of  the  passage  of  this  resolution,  and  the  said 
street  superintendent  is  hereby  directed  to  cause  notices  of  the  passage  of 
this  resolution  to  be  posted  in  the  manner  and  form  required  by  law,  and 
to  cause  a  notice,  similar  in  substance,  to  be  published  in  said  newspaper 
for  a  period  of  ten  days,  in  the  manner  required  by  law. 

I  hereby  certify  that  the  foregoing  resolution  was  passed  by  the  city 
council  of  the  city  of  Los  Angeles,  on  the  30th  day  of  October,  1893,  by  the 
following  vote : 

Ayes :  Messrs.  Campbell,  Innes,  Munson,  Nickell,  Pessell,  and  President 
Teed. 

Noes :  Messrs.  Gaffey,  Rhodes  and  Strohm. 

C.  A.   LUCKENBACH, 
City  clerk  and  ex  officio  clerk  of  the  city  council  of  the  city  of  Los  Angeles. 


No.  2.     NOTICE  OF  PASSAGE  OF  EESOLUTION  DECLARING  INTENTION. 

NOTICE   OF   PUBLIC   WORK. 

Notice  is  hereby  given  that  on  Monday,  the  30th  day  of  October,  A.  D. 
1893,  the  city  council  of  the  city  of  Los  Angeles,  state  of  California,  did,  at 
its  meeting  on  said  day,  pass  a  resolution,  number  1896, (new  series)  declar- 
ing its  intention  to  order  the  following  street  work  to  be  done,  to  wit :  To 
widen  First  street  in  said  city  of  Los  Angeles. 

That  the  land  which  was  by  said  city  council  deemed  to  be,  and  by  its 
said  resolution  was  declared  to  be  necessary,  to  be  taken  for  said  work  or 
improvement,  is  described  as  follows,  to  wit : 

[Here  insert  description  as  in  preceding  resolution,  form  No.  1.] 

That  the  exterior  boundaries  of  the  district  of  lands  established,  and 
declared  by  said  resolution  to  be  affected  and  benefited  by  said  work  or 
improvement,  and  to  be  assessed  to  pay  the  damages,  cost  and  expenses 
thereof,  are  described  as  follows  : 

[Here  insert  description  of  boundaries  as  in  preceding  resolution,  form 
No.l.  ]* 

Reference  is  hereby  made  to  said  resolution  of  intention  for  further  par- 
ticulars. D.  A.  WATSON, 

Superintendent  of  streets  of  the  city  of  Los  Angeles. 

*  The  statute  does  not  in  terms  expressly  provide  that  the  notice  shall  contain 
a  description  of  the  district  of  the  lands  deemed  to  be  benefited  by  the  work  or 
improvement,  and  to  be  assessed  to  pay  the  damages,  cost  and  expenses.  Section  3 
says  "said  notice  shall  *  *  *  state  (1)  the  fact  of  the  passage  of  the  resolution,  (2; 
its  date,  and  '3)  briefly  the  work  or  improvement  proposed,  and  (4)  refer  to  the  resolution 
for  furtner  particulars."  A  statement  that  First  street,  in  the  city  of  Los  Angeles,  for 
example,  is  to  be  widened,  would  doubtless  be  a  compliance  with  the  requirement  of  the 
statxite  that  the  notice  shall  state  briefly  the  work  or  improvement  proposed.  But  this, 
even  though  coupled  with  a  reference  to  the  resolution  on  file  for  further  particulars, 
and  a  statement  of  the  date  thereof  could  hardly  be  construed  as  giving  to  the  property 
owners,  whose  property  is  to  be  assessed  to  pay  the  cost  of  the  improvement,  that  notice 
which  is  required  by  the  requirement  of  the  constitution  that  "no  pers  >n  shall  be 
deprivedof  *  *  property  without  due  process  of  law."  And,  if  the  act  requires  the  notice 


FORMS    UNDER    THE    STREET    OPENING    ACT  81  a 

to  contain  no  more  than  this,  then  there  would  seem  to  be  great  weight  in  the  language 
of  Chief  Justice  Beatty  in  his  dissenting  opinion  in  Davies  v.  City  of  Los  Angeles,  86  Cal. 
57,  where  he  says  that  in  his  opinion  the  stntiite  is  unconstitutional  upon  the  ground 
that  "it  does  not,  when  tested  by  the  libt-al  doctrine  of  Lent  v.  Tillsou,  72  Cal.  414,  pro- 
vide for  any  proper  notice  to  owners  of  property  afiected."  But  it  is  stated  in  Lent  v. 
Tillsou,  72  Cal.  421,  that  "the  constitution  is  to  be  read  in  connection  with  laws  of  this 
character,  and  if  no  hearing  is  expressly  provided  by  the  statute,  still,  if  the  con.^titution 
guarantee*  it.  the  statute  is  to  be  properly  construed  so  as  to  allow  it,  if  possible,  and 
not  to  deny  it.  The  constitution  and  the  statute  will  be  construed  together  as  one  law." 
If,  1  herefofe,  this  statement,  in  effect,  that  the  constitution  is  to  be  read  into  the  statute 
be  the  correct  doctrine,  and  if  some  description  of  the  lands  liable  to  be  assessed  must 
be  contained  in  a  notice  posted  or  published,  to  satisfy  the  constitutional  requirement 
that  no  person  shall  be  deprived  of  property  without  due  proc«?s  of  law,  then,  even 
though  the  statute  may  not  in  express  terms  require  it,  still  it  seems  that  the  notice 
shoxild  contain  a  description  of  the  district  of  lands  deemed  to  be  benefited  by  the  work 
or  improvement,  and  liable  to  be  assessed  to  pay  the  damages,  cost  and  expenses 
thereof.  And  for  this  reason  a  description  of  the  district  of  lauds  to  be  assessed  is 
inserted  in  the  form  of  notice  given  above. 

The  statute,  station  3,  says  that  the  street  superintendent  shall  cause  to  be  posted  and 
published  "notices  of  the  passage  of  the  resolution."  To  give  notice  of  the  passage  of 
the  resolution,  the  notice  must  describe  the  resolution.  To  describe  it  accurately,  the 
notice  should  describe  all  of  its  material  provisions  and  contents.  One  of  these  material 
parts  of  the  resolution  IB  the  description  of  the  district  to  be  assessed.  Therefore,  the 
provision  of  the  statute  thut  the  s'reet  superintendent  shall  cause  to  be  posted  and  pub- 
lished "notices  of  the  passage  of  the  resolution,"  when  read  in  connection  with  the 
requirements  of  the  constitution,  as,  according  to  the  opinion  of  Mr.  Justice  Temple,  in 
Lent  v.  Tillsou,  should  be  done,  may  be  construed  as  tantamount  to  a  provision  that  the 
posted  and  published  notices  shall  contain  a  description  of  the  lands  liable  to  be  assessed 
to  pay  the  damages,  cost  and  expenses  ol  the  work  or  improvement. 

No.  3.     RESOLUTION  ORDERING  WORK  TO  BE  DONE. 

Resolution  No.  1867,  (new  series,  ordering  the  work  of  opening  and 
extending  Pri/n.rose  avenue  between  Pasadena  avenue  and  Johnson  street, 
and  appointing  commissioners  to  assess  the  benefits  and  damages,  and  have 
general  supervision  of  said  work. 

Resolved,  by  the  city  council  of  the  city  of  Los  Angeles,  state  of  California 
that  the  public  interest  and  convenience  require,  and  that  the  said  city 
council  hereby  order  to  be  done  the  work  of  opening  and  extending  Primrose 
avenue,  in  said  city,  between  Pasadena  avenue  and  Johnson  street,  in 
accordance  with  resolution  of  intention  No.  1270,  (new  series)  declaring  the 
intention  of  said  city  council  to  order  said  work  to  be  done,  and  it  is 
hereby  ordered  that  said  work  be  done  in  accordance  with  said  resolution 
of  intention. 

Resolved  that,  subject  to  removal  by  said  city  council  at  any  time  for  cause, 
M.G.  Willard,  W.  G.  Scarborough  and  Geo.  R.  Griffin  be  and  they  are  hereby 
appointed  commissioners  to  assess  the  benefits  and  damages,  and  have 
general  supervision  of  said  work  until  the  completion  thereof,  in  compli- 
ance with  an  act  of  the  legislature  of  the  state  of  California,  approved 
March  6,  1889,  and  entitled  "An  act  to  provide  for  laying  out,  opening, 
extending,  widening,  straightening,  or  closing  up,  in  whole  or  in  part,  any 
street,  square,  lane,  alley,  court  or  place  within  municipalities,  and  to  con 
demn  and  acquire  any  and  all  land  and  property  necessary  or  convenient 
for  that  purpose."  For  their  services  said  commissioners  shall  receive  as 
compensation  the  sum  of  $4.00  per  diem  for  the  days  upon  which  they  are 
actually  engaged  in  performing  said  services.  Said  commissioners  shall, 
every  two  weeks,  report  their  progress  in  said  work  to  this  council.  Belore 
proceeding  with  the  performance  of  their  duties,  each  of  said  commission- 
ers shall  file  with  the  clerk  of  this  city  council  an  affidavit  and  a  bond  to 
the  state  of  California  in  the  sum  of  $5000.00  to  faithfully  periorm  the  duties 
of  his  office,  in  the  manner  and  form  required  by  law. 


82a  STREET  WORK  LAW FORMS 

I  hereby  certify  that  the  foregoing  resolution  was  passed  by  the  city 
council  of  the  city  of  Los  Angeles,  on  the  20th  day  of  June,  1895,  by  the  fol- 
lowing vote : 

Ayes :  Messrs.  Campbell,,  Gaffey,  lanes,  Munson,  Nickell,  Pessell,  Rhodes, 
Strohm  and  President  Teed. 

Noes:  None. 

C.  A.  LUCKENBACH, 
City  clerk  and  ex  officio  clerk  of  the  city  council  of  the  city  of  Los  Angeles. 

No.  4.     REPORT  OF  COMMISSIONERS. 

Los  Angeles,  Cal.,  June  29,  189#. 
To  the  Honorable,  the  City  Council  of  the  City  of  Los  Angeles: 

We,  the  undersigned,  commissioners  appointed  by  your  honorable  body 
to  open  and  widen  Third  street,  in  the  city  of  Los  Angeles  from  Los  Angeles 
street  to  San  Pedro  street,  do  hereby  make  a  written  report  as  follows : 

That  we  carefully  viewed  the  lands  described  in  that  certain  resolution 
of  intention  No.  1896,  (new  series)  passed  by  your  honorable  body  on  the 
30th  day  of  October,  189#,  declaring  your  intention  to  open  and  widen  said 
street,  and  that  we  have  carefully  viewed  the  land  to  be  taken  for  said 
work,  and  the  improvements  and  property  affected  thereby;  that,  having 
done  so,  we  proceeded  with  all  diligence  to  determine,  and  did  determine, 
the  value  of  the  land  to  be  taken  for  said  work  or  improvement,  and  the 
damage  to  the  improvements  and  property  affected  thereby,  and  also  the 
amount  of  expenses  incident  to  said  work  or  improvement;  that,  having 
determined  the  same,  we  proceeded  to  assess,  and  did  assess,  the  same 
upon  the  district  of  lands  declared  benefited,  the  exterior  boundaries  of 
which  were  fixed  by  said  resolution  of  intention. 

We  proceeded  to  determine,  and  did  determine,  the  proportionate  amount 
of  benefit  to  be  derived  by  each  piece  and  parcel  of  land  within  said  dis- 
trict from  said  proposed  work  or  improvement,  and  said  assessment  was 
made  upon  the  lands  within  said  district  in  proportion  to  the  benefit  to  be 
derived  from  said  work  or  improvement,  so  far  as  we  could  reasonably  esti- 
mate the  same,  including  in  such  estimate  the  property  of  any  railroad 
company  within  said  district. 

That  the  total  amount  of  the  value  of  the  said  land  taken  for  said  work 
or  improvement,  together  with  the  damage  to  said  improvements  and 
property  affected  thereby,  and  the  expenses  incident  to  the  same,  as  the 
said  total  amount  has  been  assessed  by  us,  is  the  sum  of  $26,835.32,  as  will 
more  fully  appear  from  the  schedule  hereunto  attached  and  made  a  part  of 
this  report. 

That  we  have  assessed  the  said  sum  of  $26,835.32  upon  the  lands  within 
said  district  in  proportion  to  the  benefit  to  be  derived  by  said  lands  from 
said  work  or  improvement,  so  far  as  \ve  can  reasonably  estimate  the  same, 
including  in  such  estimate  the  property  of  any  railroad  company  within 
said  district. 

That  we  have  made,  and  accompany  this  report  with,  a  plat  of  the 
assessment  district,  showing  the  land  taken  or  to  be  taken  for  said  wcrk  or 
improvement,  and  the  lands  assessed,  showing  the  relative  location  of  each 


FORMS    UNDER    THE    STREET    OPENING    ACT  83fl 

district,  block,  lot,  or  portion  of  lot,  and  its  dimensions,  so  far  as  we  can 
reasonably  ascertain  the  same.  Each  block  and  lot,  or  portion  of  lot,  taken 
or  assessed,  is  designated  and  described  in  said  plat  by  an  appropriate 
number.  Said  plat  is  hereto  attached  and  marked  "  Exhibit  A." 

That  the  amount  of  $97.11,  mentioned  as  subsequent  expenses,  is  intended 
to  cover  any  subsequent  expense  after  the  filing  of  this  report,  to  wit,  for 
recording  deeds,  advertising,  etc.,  which  may  hereafter  be  necessary  in  the 
course  of  the  proceedings  to  complete  said  work  or  improvement. 
Respectfully  submitted, 

JOHN  MclLMOILL,   } 

N.  E    DA  VIDSON,     [  Commissioners. 

JOHN  MORI  ARTY, 


5J 

OH 

1J11 

3 

£ 

i 

ifl 

§ 

Oi 

X 

I 

1 

ll*2ito 

& 

R 

f 

00 

•  *|1 

2 

O 

S 

cc 

5 
Q 

1 

CO 

lift 

S 

^ 

I 

1 

•«*~* 

* 

s 

"c 
Q 

I 

jsaiajui  jo  sjBinonJBj 

* 

1 
o 

-DUBjqranouT    'Sdassaj 

snosiad  pna  possasaa 
XjjadoJd  josiuuuiiBp 
PUB  siaaAYO  jo  .seras^ 

^  v  o1  ^    • 

•asiMaaqjo  ao  sia 
-ouBjqtahoui     'saassai 
SB   utajaqj    pajsaaa^ni 
suosaad  jo  pnB  'na^si 

PUB  siauAvo  .40  saois^i 

llMMl 

•;aaj  ni  aSB^uoij 

1 

'jnauiaAoad 
-mi  aoj  pas^assB  X^ja 

-dOld    JO     UOT^dlJD  >9Q 

*BM  «0  "OS 

^ 

•jnaiaaAoiduii  ^q 
paanfai  ao  uajfna  Xjja 
-dojd   jo    uoi^duosaQ 

H'^li^IIFI 

)BIcI  UO  'OVJ 

e 

FORMS    UNDER    THE    STREET    OPENING   ACT 

No.  5.     RESOLUTION  DIRECTING  CLERK  TO  PUBLISH  NOTICE  OF  FILING  REPORT 
OF  COMMISSIONERS. 

RESOLUTION    NO.   1.^0,  (new   SERIES.) 

Resolved,  by  the  city  council  of  the  city  of  Los  Angeles,  state  of  California, 
that  the  clerk  of  this  city  council  be,  and  he  hereby  is,  authorized  and 
directed  to  give  notice  of  the  filing  of  the  report  of  the  commissioners  here- 
tofore appointed  by  this  city  council  by  resolution,  No.  1367,(new  series)  to 
assess  the  benefits  and  damages  and  have  general  supervision  of  the  work 
of  opening  and  extending  Primrose  avenue  in  said  city  from  Pasadena  avenue 
to  Johnson  street,  by  publication  of  such  notice,  in  the  manner  and  form 
required  by  law,  for  ten  days  in  the  Los  Angeles  Times,  a  daily  newspaper 
printed,  published  and  circulated  in  said  city,  and  hereby  designated  for 
that  purpose,  requiring  all  persons  interested  to  show  cause,  if  any,  on  or 
before  Saturday,  the  24lh  day  of  September,  1892,  why  said  report  should  not 
be  confirmed,  before  said  city  council. 

I  hereby  certify  that  the  foregoing  resolution  was  passed  by  the  city 
council  of  the  city  of  Los  Angeles,  on  the  20th  day  of  August,  389#,  by  the 
following  vote: 

Ayes  :  Mrssrs.  ('uinplit'll,  Gaffey,  Innes,  Munson,  Nickell,  Pessell,  Rhodes, 
Strohin  and  Pn'^iaent  Teed. 


Noes: 

C.  A.  LUCKENBACH, 

City  clerk  and  ex  officio  clerk  of  the  city  council  of  the  city  of  Los  Angeles. 


No.  6.     NOTICE  OF  FILING  REPORT  OF  COMMISSIONERS  WITH  CITY  CLERK. 

Notice  of  filing  report  of  commissioners  appointed  to  open  and  extend 
PiimroKt'  avenue,  from  Pasadena  avenue  to  Johnson  street. 

Notice  is  hereby  given  that  the  commissioners  appointed  by  the  city 
council  of  the  city  of  Los  Angeles,  state  of  California,  to  assess  the  benefits 
and  damages  and  to  have  general  supervision  of  the  proposed  work  of  open- 
ing and  extending  Primrote  avenue  in  said  city,  from  Pasadena  avenue  to 
Johnson  street,  having  made  their  assessment  of  benefits  and  damages, 
have  made  and  filed  in  the  office  of  the  undersigned,  their  written  report, 
together  with  a  plat  of  the  assessment  district. 

All  persons  interested  are  hereby  notified  and  required  to  show  cause,  if 
any  they  have,  on  or  before  Saturday  the  24th  day  of  September,  189#,  why 
said  report  should  not  tie  confirmed  by  the  said  city  council. 

All  objections  must  be  in  writing  and  filed  with  the  clerk  of  said  city 
council. 

Each  person  signing  an  objection  will  attach  thereto  his  or  her  postoffice 
address. 
Office  of  citv  clerk,) 

Aug.  24,  m*.    j  FREEMAN  G.  TEED, 

City  clerk  and  ex  officio  clerk  of  the  city  of  Los  Angeles. 


STREET  WORK  LAW FORMS 

No.  7.   CERTIFICATE  OF  CITY  OLERK  CERTIFYING  TO  COPY  OF  REPORT,  ETC. 

State  of  California,        ) 

City  of  Los  Angeles,    f 

I,  Freeman  G.  Teed,  city  clerk  of  the  city  of  Los  Angeles,  do  hereby 
certify  the  foregoing  to  he  a  full,  true  and  correct  copy  of  the  report,  assess- 
ment and  plat  made  and  filed  by  the  commissioners  appointed  by  the  city 
council  of  the  city  of  Los  Angeles,  state  of  California,  to  assess  the  benefits 
and  damages,  and  to  have  general  supervision  of  the  proposed  work  of 
opening  and  widening  Third  street  in  said  city,  from  Los  Angeles  street  to 
San  Pedro  street,  as  finally  confirmed  and  adopted  by  said  city  council. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  affixed  the  cor- 
porate seal  of  said  city,  at  my  office,  this  31st  day  of  August,  A.  D.  1892. 
"   [SEAL.]  FREEMAN  G.  TEED, 

City  clerk  and  ex  officio  clerk  of  the  city  council  of  the  city  of  Los  Angeles. 


No.  8.    NOTICE  BY  SUPERINTENDENT  OF  STREETS  THAT  HE  HAS  RECEIVED 
THE  ASSESSMENT  ROLL. 

Notice  of  receipt  of  assessment  roll  in  the  proceeding  to  open  and  widen 
Third  street,  from  Lis  Angeles  street  to  San  Pedro  street. 

Notice  is  hereby  given  that  the  assessment  roll  in  the  proceeding  to 
open  and  widen  Third  street  in  the  city  of  Los  Angeles,  state  of  California, 
from  Los  Angeles  street  to  San  Pedro  street,  viz.,  a  certified  copy  of  the  report, 
assessment  and  plat  made  and  filed  by  the  commissioners  appointed  by 
the  city  council  of  said  city  to  assess  the  benefits  and  damages,  and  to 
have  general  supervision  of  the  proposed  work  of  opening  and  widening 
said  Third  street  from  Los  Angeles  street  to  San  Pedro  street,  as  finally  con- 
firmed and  adopted  by  said  city  council,  and  certified  by  the  city  clerk 
and  ex  officio  clerk  of  said  city  council,  has  been  forwarded  to,  and  filed  in 
the  office  of  the  undersigned,  the  superintendent  of  streets  of  said  city. 

All  sums  levied  and  assessed  in  and  by  said  assessment  roll  are  due  and 
payable  immediately.  The  payment  of  said  sums  is  to  be  made  to  me 
within  thirty  days  from  the  date  of  the  first  publication  of  this  notice.  All 
assessments  not  paid  before  the  expiration  of  said  thirty  days  will  be 
declared  to  be  delinquent,  and  thereafter  the  sum  of  five  per  cent,  upon 
the  amount  of  each  delinquent  assessment,  together  with  the  cost  of  adver- 
tizing each  delinquent  assessment,  will  be  added  thereto. 
Office  of  street  superintendent,) 

this  28th  day  of  October,  1892.}  E.  H.  HUTCHINSON, 

Superintendent  of  streets  of  the  city  of  Los  Angeles. 


No.  9.    CERTIFICATE  OF  SUPERINTENDENT  OF  STREETS  AT  FOOT  OF 
ASSESSMENT  ROLL. 

I  hereby  certify  that  all  the  assessments  not  marked  "paid"  in  the  fore- 
going assessment  roll,  are  still  unpaid,  and  have  become  and  are  now 
delinquent,  and  five  per  cent,  is  hereby  added  to  the  amount  of  each 
assessment  so  delinquent. 

E.  H.  HUTCHINSON, 
Superintendent  of  streets  of  the  city  of  Los  Angeles. 


INDEX. 


INTRODUCTION. 

Amendments  to  Vrooman  act  of  March  18,  1885.  xl 

Bond  act  of  February  27,  1893 .'.'.'.'.'.'.'     xxii 

Classification  of  Street  Laws xxi 

Constitution,  amendment  of  section  19  of  article  XI,  requiring  the 
assessment  to  be  levied  and  collected  prior  to  letting  the 
contract xxxviii 

effect  01  section  19,  article  XI,  requiring  the  assessment  to  be 

levied  and  collected  prior  to  letting  the  contract xxxvi 

Charter  provisions,  how  far  superseded  by  provisions  of  general  laws  xxxii 
General  laws,  how  far  controlling  over   provisions   of  charters  and 

general  municipal  incorporation  act.   xxxii 

History  of  the  street  improvement  acts xxiii 

of  street  improvement  acts  in  San  Francisco,  prior  to  the  new 

constitution xxiv 

of   the  street  improvement  acts  passed  since  adoption  of  new 

constitution xxix 

of  street  opening  acts  prior  to  the  new  constitution xlix 

of  street  opening  acts  since  the  adoption  of  the  new  constitution         1 

McClure  charter xxix 

Municipal  incorporation  act  of  March  13.  1883 xxx 

Municipal  indebtedness  act  of  March  19,  1889 xxii,  Hi 

"  Opening,"  meaning  of xxi 

Private  contract xlii 

San  Francisco,  history  of   street  improvement   acts  in,  prior  to  the 

new  constitution xxiv 

Sanitary  district  art  of   March  31,  1891 xxii,  xlviii 

"  Street  improvement  acts" xxi 

history  of xxiii 

history  of,  since  adoption  of  new  constitution xxix 

in  San  Francisco  prior  to  the  new  constitution xxiv 

Street  opening  act  of  March  6,  1889 xxii,  xlviii 

constitutionality  of li 

Street  opening  act  of  March  23, 1893 xxiii,  li 

Street  opening  acts  prior  to  new  constitution,  history  of xlix 

since  the  adoption  of  the  new  constitution,  history  of 

Street  opening  or  street  widening  acts xxi 

"Street  work,"  meaning  of xxi 

Tree   planting  or  shade  tree  act  of  March  11,  1893 xxii,  xlvii 

Vrooman  act  of  March  6,  1883 xxxv 

Vrooman  act  of  March  18,  1885 xxii,  xxxvii 

amendments  to xl 

outline  of  provisions  of xliv 

VROOMAN  ACT  OF  MARCH  18,  1885. 

Absent  owner,  service  on,  sec.  12 142  14a 

Acceptance,  expenses  before,  sec.  7  sub.  2 64  la 

expenses  after,  sec.  7  sub.  2 ; 64  7a 

of  streets,  prerequisites  to  and  their  subsequent  improve- 
ment, sec.  20 176  17a 

of  streets,  when  and  how  to  be  made,  and  effect  of,  sec.  20.  176  17a 


88a  STREET    WORK    LAW INDEX 

Acceptance,  partial  or  conditional,  sec.  20 176 

record  of  streets  accepted,  how  kept,  sec.  20 176 

streets,  register  of,  sec.  20 176 

Act  to  be  liberally  construed,  sec.  52 216 

when  takes  effect,  sec.  37 190 

Action,  jurisdictional  prerequisites  to  right  of,  sec.  10 108 

Actions,  joinder  of,  sec.  12 154,  161 

Administrators,  sec.  12 146 

assessment  need  not  be  presented  to,  sec.  7 76 

may   be  owners,  sec.  16 • 174 

Aggrieved,  who  is  party,  sec.  11 128 

Alleys 5 

Alleys,  terminations  of,  assessments  for,  sec.  7 64 

Allowances  to  lot  owners  for  previous  grading,  sec.  7  sub.  10 65 

to  lot  owners  for  previous  work,  sec.  7  sub.  10 66 

Answer,  sec.  12 155 

Appeal,  sec.  11 116 

assessment  for  too  much,  and  severable,  sec.  11 136 

by  contractors,  sec.  11 140 

by  contractors  for  irregularities  in  assessment,  sec.  8 97 

by  lot  owner  for  irregularities  in  assessment,  sec.  8. . .  .94,     97 

council  cannot  dismiss,  sec.  11 141 

council  may  hold  an  assessment  to  be  invalid,  sec.  11  ....   116 
decision  of  council  conclusive  as  to  certain  errors,  sec.  11.   116 

effect  of  failure  to,  sec.  11 117 

extension  of  time  to  perform  contract,  sec.  11 180 

fraudulent  side  agreement,  sec.  11 131,  136 

from  decision  that  contract  fulfilled,  sec.  11 130 

if  unsuccessful,  not  estoppel,  sec.  11 141 

is  not  remedy  if  contract  executed  prematurely,  sec.  11 ...   140 
is  not  remedy  if  contract  is  for  less  work  than  is  described 

in  the  resolution  of  intention,  sec.  11 139 

is  not  remedy  if  demand  is  for  more  than  amount  charge- 
able, sec.  11 140 

is  not  remedy  when  lot  not  assessed  to  unknown  owners  or 

owner  in  hi?  true  name,  sec.  11 138 

is  not  remedy  when  lot  not  liable  to  assessment,  sec.  11  . .   138 
is  not  remedy  when  written  contract  gives  more  time  for 

completion  than  the  award,  sec.  11 140 

only  remedy  for  purely  technical  omission  in  diagram 

sec.  11 137 

only  remedy  when  a  lot  chargeable  with  a  portion  of  the 

expenses  is  omitted  from  the  assessment,  sec.  11 138 

only  remedy  when  second  contract  let  during  existence 

"  of  another,  sec.  11 137 

powers  of  council  upon,  sec.  11 116 

practice  on,  sec.  11 , 141 

publication  of  notice  of,  sec.  11 116 

to  council,  sec.  11 116 

to  council,  sec.  3 15,  17 

under  present  act,  principles  governing,  sec.  11 128 

under  prior  street  improvement  acts,  principles  governing, 

sec.  11 119,  128 

when  assessed  to  only  one  of  several  joint  owners,  sec.  11 ..  130 

Approval  of  award, sec.  5 42 

Assessment,  sec.  5 54 

attestation  of,  sec.  8 92 

description  of  property,  sec.  8 92.  94 

delivery  of  to  contractor,  sec.  9 99,  105 

districts,  sec.  3 9 


INDEX  TO  THE  VROOMAN  ACT  89a 

Assessment  districts,  sec.  7  sub.  12 66      10a 

districts,  cost  of  work,  sec.  7  sub.  1 64        7a 

districts,  objection  to  extent  of,  sec.  3 10        4a 

for  cost  of  regrading  and  repaying  in  proceedings  to  change 

grade,  sec.  47 210      27a 

for  crossings  of  main  and  subdivisional  sts.,  sec. 7  sub.  5. .     64        8a 

for  cul  de  sac,  sec.  7  sub.  5 64        8a 

for  improvements  after  acceptance,  sec.  20 176      17a 

for  main  street  crossings,  sec.  7  sub.  3 64        7a 

for  sewers  under  one  sidewalk,  sec.  7  sub.  8 65        8a 

for  subdivisional  street  crossings,  sec.  7  sub.  6 64        8a 

for  terminations,  sec.  7  sub.  4 , 64        la 

for    terminations  of  alleys  or  subdivisional  streets  sec.  7 

sub.  7 64        8a 

for  work  on  one  side  of  centre  line,   for  one  block  or  less, 

sec.  7  sub.  8 65        8a 

for  too  much,  if  severable,  appeal  only  remedy,  sec  11   ...  136 

form  of,  sec.  8  85 

front  foot,  sec.  7  sub.  1 64        la 

front  foot  mode,  sec.  7 69-80 

front  foot  mode  constitutional,  sec.  7 70,  74 

general  principles,  sec.  7 74,  79 

how  made,  sec.  8 85,  88      10a 

if  void  cannot  be  validated  by  ratification,  sec.  7 76,  78 

if  a  lot  chargeable  with  a  portion  of  the  expense  is  omitted 
if  severable  may   be  severed  and  recovery  had  on  valid 

part,  sec.  7 ." 78 

from  the  assessment,  appeal  only  remedy,  sec.  11  ....  138 
in  proceedings  to  change  grade,  error  in  name  of  owner, 

sec.  45 209      26a 

legislature  cannot  directly  exercise  power  of,  sec.  7 74 

made  after  fulfillment  of  "contract,  sec.  8 87 

of  property  exempt  under  other  acts,  sec.  7  sub.  9 65        8a 

public  property  exempt,  sec.  7 76 

roll,  sec.  8..  .." 84,101      lOa 

roll,  howr  made  and  what  to  contain,  sec.  8 84      10a 

roll,  in  proceedings  to  change  grade,  sec.  48 211      27a 

roll,  in  proceedings  to  change  grade,  notice  of,  sec.  49. ...  211      28a 

recording,  sec.  9 99, 102,  105      lla 

supplementary  in  proceedings  to  change  grade,  sec.  51 ....  213      29a 

time  within  which  to  make,  sec.  8 92 

to  be  made  by  street  superintendent,  sec.  8 88 

to  true  owner  in  his  true  name,  sec.  8 90 

to  unknown  owners,  sec.  8 90,  92 

what  to  be  assessed,  sec.  7 64        la 

when  a  now  assessment  may  be  made,  sec.  9 99      lla 

when  delinquent,  in  proceedings  to  change  grade,  sec.  49..  211      28a 
Assessments,  allowances  for  previous  work  other  than  grading, 

sec.  7  sub.  10 66        9a 

before  completion  of  work,  sec.  12^ 162      14a 

by  district,  sec.  3 33 

.  grading,  allowances  to   lot   owners  for  previous   grading, 

sec.  7  sub.  10 65        8a 

Assignment  of  contract,  sec.  5 60 

Authority  to  improve  streets,  sec.  1 1        la 

Award,  approval  of,  sec.  5 •  •     42        5a 

of  contract,  sec.  5 42        5a 

sec.  3 18 

sec.  5 ...44,48,51,57 

sec.  9...  100 


90a  STREET    WORK    lAW INDEX 

Award  of  contract,    notices  of,  sec.  3 18 

sec.  5 44,  48,  57 

sec.  9 100 

posting  and  publishing,  notice  of  sec.  5 43  5a 

Bar  to  proceedings,  none  in   case  of  sewers,  gutters,  manholes, 
culverts,  cesspools,  crosswalks,  sidewalks,  or  drainage, 

sec.  24. '178  18a 

Barring  work  by  written  objection,  sec.  3 8  2a 

Benefits,  district  assessments  to  be  made  by,  sec.  7 66  10a 

Bids,  certified  check  or  bond  with,  sec.  5 42  4a 

consideration  of,  bee.  3 18 

sec.  5 42,  44,  48,  57  5a 

sec.  9 100 

opening,  sec.  5 42  5a 

re-advertisement  for,  sec.  5 .  .     58 

rejection  of,  sec.  5 42  5a 

''Blocks,"  meaning  of,  sec.  34.  subdiv.  7 189  22a 

Bond,  sec.  5 59 

forfeiture  of 43  5a 

Bonds  of  municipality  to  pay  for  sewer  construction,  sec.  29 186  20a 

of  municipality  to  pay  for  sewer  construction,  sale  of,  sec. 

30 186  20a 

of  municipality  to  pay  for  sewer  construction,  sale  if  at  par, 

sec.  31 187  20a 

of  municipality  sold  to  pay   for  sewrer   construction,  pro- 
ceeds of  sale,  how  deposited  and  used,  sec.  32. 187  20a 

of  superintendent  of  streets,  sec.  22 '.   177  18a 

proceeds  of  sale  of,  sec.  32 187  2Qa 

sale  of,  sec.  30. 186  20a 

sale  of,  sec.  31 187  20a 

to  secure  municipal  indebtedness,  issuance  of,  sec.  29 186  20a 

with  bids,  sec.  5 42  4a 

with  contract,  sec.  5 43  6a 

Certified  checks,  disposal  of,  sec.  5 43  5a 

Certificate  of  city  engineer,  sec.  9 99,  102,  105  lla 

of  city  engineer,  delivery  of  to  contractor,  sec.  9 99,  105  lla 

of  repairs,  sec.  13 162  14a 

Cesspools,  not  stayed  by  objections,  sec.  24 178  18a 

.  powers  of  council  over,  sec.  24 , 178  18a 

Changing  grade 8,  18,  100 

Change  of  grade,  assessment  of  damages,  etc.,  sec.  40 208  25a 

petition  to  council  necessary,  sec.  2 6  la 

assessment  for  regrading  and  repaving,  sec.  47 210  27a 

assessment  roll,  sec.  48 211  27a 

assessment  to  unknowrn  owners,  sec.  45 , 209  26a 

commissioners,  oath  of,  sec.  41 208  25a 

constitutionality  of  provisions  for. . 204-208 

condemnation  proceedings,  sec.  51 213  29a 

damages  for,  sec.  38 199  24a 

damages  for,  burden  of  proof,  sec.  38 202 

damages  for,  petition  showing  amount  of  damages,  etc., 

sec.  38 202 

sec.  39 208  25a 

mode  of  assessment,  sec.  43 208  25a 

petition  of  property  owners,  showing  damages,  etc.,  sec.  39.  208  25a 

power  of  commissioners  to  subpoena  witnesses,  sec.  42. ...  208  25a 

powers  of  council  over,  and  proceedings  for,  sec.  38 191  24a 

regrading  and  repaving  in  proceedings  for  change  of  grade, 

sec.  46 209  26a 

report  of  commissioners,  sec.  43 •.  208  25a 


INDEX    TO    THE    VROOMAN    ACT  91  a 

Change  of  grade,  report  of  commissioners,   contents  of,  sec.  44.  .   208      25a 

supplementary  assessment,  se'c.  51 213      29a 

what  provisions  of  the  act  are  applicable,  sec.  52. ...  214      30a 

Check,  certified,  with  bids,  sec.  5 . .  42        4a 

disposal  of,  sec.  5, '.I'.'.!!.'!.'.".'.'.'.     43        5a 

forfeiture  of 43        5a 

City  council,  what  is,  sec.  34,  sub.  9 189      22a 

City   not   liable  for  damages  consequent  upon  dangerous  condi- 
tion of  graded  street,  sec.  23 177      38a 

City  to  be  exempt  from  all  liability,  sec.  6 61        la 

City,  what  is,  sec.  l>4,  sub.  5 : 188      22a 

Clerk,  who  is,  sec.  34,  sub.  11 189      23a 

Commencement  of  work,  time  for,  sec.  6 61        6a 

Complaint,  general  principles,  sec.   12 151 

some  special  rules  applicable  to,  sec.  12 154 

what  must  allege,  sec.  12 151 

Completion  of  work,  assessments  before,  sec.  12)£ 162      14« 

time  for,  sec.  6 61        6« 

Condemnation  suit  in  proceedings  to  change  grade,  sec.  5.1 213      29a 

Construction  of  act  to  be  liberal,  sec.  53 216      30a 

Constitutionality  of  front  foot  mode  of  assessment,  sec.  7 70 

of  section  thirteen,  sec.  13 169 

of  sections  38-53 ' 204 

Contents  of  contract,  sec.  6 62 

Contingent  fund,  sec.  25 179      18a 

Contract,  assessment  made  after  fulfillment  of,  sec.  8 87 

assignment  of,  sec.  5 60 

award  of,  sec.  5 42        5a 

bond  with,  sec.  5 43        6a 

contents  of,  sec.  5  * 50,  52,     55 

contents  of,  sec.  6 62 

execution  of,  sec.  3 11,     18 

sec.  5 44,  49,  52,     57 

sec.  9 100 

execution  of,   with  original  bidder,  sec.  5 43        6a 

jurisdiction,  prerequisites  of,  sec.  3 18 

sec.  5 44,     56 

lot  owners  taking,  sec.  5 59,    61 

not  affected  by  subsequent  changes  in  the  law,  sec.  7 74   « 

property  owners,  election  to  take,  sec.  5 43        5a 

recording,  section  10 107,  114      12a 

reletting,  sec.  5 58 

time  within  which  to  commence  and  complete,    sec.  6. ...     62 

to  be  fulfilled  to  satisfaction  of  superintendent,  sec.  8 86 

what  must  contain,  sec.  t> 61        la 

when  complete,  sec.  3 11 

Contractors'  authority  to  collect,  sec.  9 99      lla 

demand  and  acknowledgment  of  payment,  sec.  10 107      12a 

Cost  of  any  work  may  be  paid  out  of  the  treasury,  sec.  26 179      19a 

Cost  of  publishing  notices,  sec.  5 44        6a 

Council,  when  and  what  kinds  of  work  may  order  done,  sec.  2.  .       5        la 

Counter  claim,  property  owner  cannot  set  up,  sec.  7 75 

Crossings,  assessment  for,  sec.  7 64        la 

of  main  and  subdivisional  streets,  assessment  for,  sec.  7.  .     64  la  8a 

Cross  walks  not  stayed  by  objections,  sec.  24 178      18a 

powers  of  council  over,  sec.  24 178      18« 

Cul-de-sac,  assessment  for,  sec.  7,  sub.  5 64        8a 

Culverts  not  stayed  by  objections,  sec.  24 178      18a 

powers  of  council  over,  sec.  24 178      18a 


92a  STREET    WORK    LAW INDEX 

Damages  for  defective  streets,  sec.  23 177      18a 

in  consequence  of  damages  on  condition  of  graded  streets, 

who  liable,  sec.  23 177      18a 

powers  of  council  over,  sec.  24 178      18a 

for  change  of  grade,  sec.  38 199 

Decree,  sec.  12 160 

Dedication , 5 

Defective  streets,  damages  resulting  from,  sec.  23 177 

Defendants,  sec.  12 146 

Defenses,  sec.  12 155 

Definitions,  part  III  ot  act 188      21a 

Definition  of  "clerk"  and  "city  clerk,"  sec.  34.  sub.  11 189      23a 

of  city  council,  sec.  34,  sub.  9  189      22a 

of  "irregular  blocks,"  sec.  34,  sub.  12 189      23a 

of  "mayor,"  sec.  34,  sub.  10 189      23a 

^      of  "municipality"  and  "city,"  sec.  34,  sub.  5 188      22a 

of  "paved,"  and  "repaved,"  sec  34,  sub.  6 188      22a 

of  "quarter  blocks,"  sec.  34,  sub.  12 189      23a 

of  "street,"  "main  street"  and  "blocks,"  sec.  44, sub.  7,. . .   189      22a 

of  "street  superintendent,"  sec.  34,  sub.  8 189      22a 

of    "work,"    "improve."    "improved,"   "improvement," 

sec.  34,  sub.  2' ' 7 188      21a 

of  "year,"  sec.  34,  sub.  13 189      23a. 

Delinquent  assessments,  sale  of  property  for  in   proceedings  to 

change  grade,  sec.  49 211      28a 

Delivery  of  warrant,   assessment,   diagram   and    certificate  of 

engineer  to  contractor,  sec.  9 99,  105 

Demand,  sec.  5 54 

sec.  10 107      12a 

amount  of,  sec.  10 * 107,  112 

by  whom  made,  sec.  10 107,  112 

evidence  of,  sec.  12 160 

how  made,  sec.  10 107      12a 

on  premises,  sec.  10 107,  110,  112 

return  as  evidence  of,  sec.  10 114 

upon  agent,  sec.  10 107,  109 

upon  persons  assessed,  sec.  10 107,  109 

Description  of  property,  sec.  8 92 

Diagram,  sec.  8 * 93,    98 

sec.  9 : 101 

annexed  to  assessment,  contents  of,  sec.  8 85      10a 

delivery  of  to  contractor,  sec.  9 99,  105 

of  district,  sec.   7,  sub.  12 66      10a 

recording,  sec.  9 99,  102,  105 

District  assessments,  sec.  3 '9,      33        3a 

District  assessment  cost  of  work,  sec.  7,  sub.  1 64        7a 

for  sewer  construction,  sec.  27 179      19a 

objection  to  extent  of,  sec.  3 10        4a 

Districts,  how  assessed,  sec.  7,  sub.  12 66      10a 

Drainage,  sec.  24 178      18a 

Effect,  when  act  takes,  sec.  37 190      24a 

Election  to  authorize  a  municipal  indebtedness  to  pay  for  sewer 

construction,  sec.  28 185      19a 

Eminent  Domain,  sec.  7 74 

Engineer's  certificate,  recording,  sec  9 99      lla 

Engineer,  duties  and  compensation  of,  sec.  34,  sub.  1 188      21a 

Establish  grade 7 

Evidence,  sec.  12 157 

of  demand,  sec.  12 160 

of  grade,  sec.  12 159 


INDEX  TO  THE  VROOMAN  ACT  93a 

Evidence,  parol,  sec.  12 159 

return  as,  of  demand,  sec.  10. 114 

warrant  etc.  prima  facie  of  rig'ut  to  recover,  sec.  12 142      14a 

what  plaintiff  must  prove,  sec.  12 157 

Executors,  sec.  12 146,  148 

may  be  owners,  sec.  16 17      \Qa 

Expense  of   any  work  may  be  ordered  payable  out  of  any  fund, 

sec.  26 ." 179      19^ 

of  improvements  after  acceptance,  sec.  20 176      17a 

incidental,  sec.  5 44        Qa 

Extension  of  time,  sec.  6 62        6a 

Fines  and  penalties  imposed  on  persons  failing  to  make  repairs, 

sec.  15 174      16a 

Forfeiture  of  checks  or  bonds 43        5a 

Fraudulent  side  agreement,  sec.  5 55 

remedy  for,  sec.  11 131 

Front-foot  assessment,  sec.  7 64        7a 

Front-foot  mode  of  assessment,  sec.  7 69 

is  the  general  rule,  sec.  7 69 

is  constitutional ,  sec.  7 « 70 

Fund,  expense  of  any  work  may  be  ordered  paid  out  of  any,  sec. 

20 179      19a 

Fund,  street  contingent,  sec.  25 179      18a 

General  principles  of  assessments,  sec.  7 74 

Grade,  after  change  of,  petition  to  council  necessary,  sec.  2 6        la 

Grade,  change  of,  sec.  2 8 

sec.  3 18 

sec.  9 100 

change  of,  constitutionality  of  provisions  for 204 

change  of,  petition  of  property  owner  showing  amount  of 

damages,  etc.,  sec.  39 : 208      25« 

change  of,  powers  of  council,  sec.  38 191      24a 

change  of,  when  assessment  delinquent,  sec.  48 211      28a 

damages  for  change  of,  sec.  38 199 

establishment  of,  what  is 193 

evidence  of  establishment  of,  sec.  2 7 

sec.  12 159 

proceedings  to  change,  assessment   for  regrading  and  re- 
paying, sec.  47 210      27a 

proceedings  to  change,  assessment  roll,  sec.  48 211      27a 

proceedings  to  change,  condemnation  proceedings,  sec.  51.  213      29a 
proceedings  to  change,  damages  to  property  owners,  war- 
rants for,  sec.  50 213      29« 

proceedings  to  change,  error  in  name  of  owner  in  assess- 
ment, sec.  45 209      26a 

proceedings  to  change,  filing  report,  notice  of,  sec.  45 209      26a 

proceedings  to  change,  hearing  on  commissioners'  report, 

sec.  46 209      26a 

proceedings  to  change,  notice  of  assessment  roll,  sec.  49. . .  211      28a 
proceedings  to  change,  regrading  and  repaving,  how  bids 

let,  etc.,  sec.  46 209      26a 

proceedings  to   change,  what  provisions  of  the  act  are 

applicable,  sec.  52 214      30a 

resolution  of  intention  to  change,  sec.  38 191      24a 

Grading..  7,100 

sec.  10 108 

allowa  .ces  to  lot  owners  for  previous,  sec.  7 65        8a 

regrading  and  repaving  in  proceedings  to  change  grade, 

sec.  46 209      26o 

Guardian,  may  be  owner,  sec.  16 174       16a 


STREET  WORK  LAW INDEX 

Gutters,  not  stayed  by  objections,  sec.  24 178      18a 

powers  of  council  over,  sec.  21 178      18a 

Highway 2 

Homestead,  liable  for  assessment,  sec.  12 162 

Incidental  expenses,  sec.  5 44        6a 

what  are,  sec.  34,  sub.  3 188      21a 

Indebtedness,  special  election  authorizing,  sec.  28 186      91a 

Injunction,  sec.  12 14:] 

Interest,  sec.  10 108,  115 

on  unpaid  assessments,  sec.  10 107      12« 

Irregular  blocks,  what  are,  sec.  34,  sub.  12 189      23a 

Judgment,  sec.  12 160 

no  personal  judgment,  sec.  12 161 

what  decreed,  sec.  12 142      14a 

Jurisdiction ,  sec.  3 10,  37 

and  appe  al,  sec.  3 15 

meaning  of,  sec.  11 123,  132 

of  subject  matter  of  the  improvement,  sec.  3 14 

power  of  council  to  determine  its  own,  sec.  3 13 

to  order  work,  when  acquired,  sec.  3 9        3a 

what  streets,  etc., are  subject  to  the  jurisdiction  of  the  act, 

sec.  1 1        la 

Jurisdictional  prerequisites,  sec.  3 18,  44 

requirements,  meaning  of,  sec.  11 123,  132 

Justification  of  sureties,  sec.  5 42        5a 

Lessee,  sec.  16 174      16a 

may  pay  the  assessment,  or  may  redeem  the  property  after 

sale,  sec.  17 " 176      16a 

Lien,  decree,  sec.  12 142      14a 

extinguished  by  sale  for  taxes,  sec.  7 75 

loss  of  by  contractor,  sec.  10 107      12a 

release  of,  sec.  10 107      12a 

what  establishes,  sec.  9 99      11  a 

what  necessary  to  valid,  sec.  9 99      lla 

Lot,  each  lot  independently  liable,  sec.  7 79 

whole  of  liable  for  assessment,  sec.  12 62 

Lot  owner,  not  personally  liable,  sec.  12 161 

taking  contract,  sec.  5 59,  61 

Main  street  crossings,  assessments  for,  sec.  7 64        7  a 

"Main  street,"  meaning  of,  sec.  34,  sub.  7 189      22a 

Manholes  not  stayed  by  objections,  sec.  24 178      18a 

powers  of  council  over,  sec.  24 178      18a 

Materials,  sec.  6 61        la 

Mayor,  who  is,  sec.  34,  sub.  10 189      23a 

Miscellaneous  provisions  of  the  act,  part  III 188      21a 

Municipality,  what  is,  sec.  34,  sub.  5. 188      22a 

Notice  of  award,  posting  and  publishing,  sec.  5 43        5a 

of  intention,  sec.  4 '40 

service  of,  and  its  verification,  sec.  19 176      17a 

Notices,  ho\v  published  and  posted,  sec.  34,  sub.  4 188      22a 

inviting  sealed  proposals,  sec.  3 18 

sec.  5 42,44,56        4a 

sec.  9 100 

in  writing,  by  whom  may  be  served,  sec.  19 176      17a 

in  writing,  record  of  service  of  to  be  kept,  sec.  19 176      17a 

in  writing,  service  of,  how  verified,  sec.  19 176      17a 

of  award  of  contract,  sec.  5 48 

of  passage  of  resolution  of  intention,  sec.  3 8,  18,  24        2a 

sec.  5 44,  56 

sec.  9 100 


INDEX    TO    THE    VROOMAN    ACT  95fl 

Oaths,  superintendent  of  streets  may  administer,  sec.  19 176      17a 

Objections,  sec.  3 -. 8,  28,  30        2a 

sec.  4 37 

in  writing,  shall  not  stay  construction  of   sewers,  gutters, 
manholes,  culverts,  cesspools,  crosswalks  or  sidewalks, 

see.  24 178      iSa 

to  extent  of  assessment  districts,  sec.  3 10        4a 

Official  grade,  sec.  2 7 

One  resolution  of  intention,  all  kinds  of  work  included  in,  sec.  7.     66        9a 

Opening  proposals,  sec.  5 42        5a 

Order  for  work  to  be  done,  sec.  3 9,  18,  26        3a 

sec.  5 44,  56 

sec.  9 100 

for  work  to  be  done,  publication  of,  sec.  3 18,  27 

sec.  5 44,  56 

sec.  9 100 

for  work  to  be  done  when  jurisdiction  acquired,  sec.  3 9        3d 

to  do  work,  sec.  3 9        3a 

to  do  work,  petition  for,  sec.  4 37,  42 

Owner,  sec.  12 146 

defined,  sec.  16 ]74      16a 

Part  I  of  Yrooman  act 1        la 

Part  II  of  Vrooman  act,  specially  enabling  provisions 179      19a 

Part  III  of  Yrooman  act,  definitions  and  miscellaneous  provisions  188      21a 

Parties,  sec.  12 146,  161 

Patented  article,  sec.  5 52 

Paved,  meaning  of,  sec.  34,  sub.  6 188      22a 

Payment  to  street  superintendent,  sec.  10 107      12a 

Payments,  how  acknowledged,  sec.  10 107      12a 

Personal  liability,  owner  not  personally  liable,  sec.  7 74 

Petition  for  work  to  be  done,  sec.  4 37        4a 

of  remonstrance,  sec.  3 8,  28        2a 

of  remonstrance,  sec.  11 117,  128 

to  council  to  order  work  done,  sec.  4 37        4a 

Plaintiffs,  sec.  12 146 

Planking,  sec.  3 '.  .       8 

Plans  and  specifications,  sec.  3 9        3a 

and  specifications  of  sewer  construction,  sec.  33 187      21a 

Ph>;i<lin-s,  sec.  12 148 

Posting  and  publishing  notice  of  passage  of  resolution  of  inten- 
tion, sec.  3 18,     24        2a 

sec.  5 44,    56 

sec.  9 100 

how  and  when  to  be  made,  sec.  34,  sub.  4 188      22a 

notice  of  award,  sec.  5 48        5a 

resolution  of  intention,  sec.  3 20       2a 

sec.  5 44 

sec.  9 100 

Procedure,  general  principles  of,  sec.  12 143 

Proof  of  publication  and  posting,  sec.  34,  sub.  4  188      22a 

Property  owners  election  to  take  contract,  sec.  5 43        5a 

Proposals,  notices  inviting,  sec.  3 18 

sec.  5 44,    56       4a 

sec.  9 100 

opening,  sec.  5 42        5a 

re-advertisement  for,  sec.  5 : 58 

Public  property  exempt,  sec.  7 76 

Publication  and  posting  of  notices  inviting  sealed  proposal,  sec.  3    18 

sec.  5  44,48    56 

sec.  9 -.100 


96a  STREET  WORK  LAW INDEX 

Publishing  and  posting  of  notices  of  award,  sec.  3 18 

sec.  5 44,     57        4a 

sec.  9 100 

and  posting  notices  of  passage  of  resolution  of  intention, 

sec.  3 8        2a 

and  posting,  proof  of,  how  made,  sec.  34,  sub.  4 188      22a 

of  order  for  work  to  be  done,  sec.  3 18        3a 

sec.  5 44,     56 

sec.  9 100 

of  resolution  of  intention,  sec.  3 21,    24        2a 

sec.  5 44,     56 

sec.  9 100 

Publishing  and  posting  resolution  of  intention,  sec.  3 8        2a 

notice  of  award,  sec.  5 43,    49        5a 

notice  inviting  sealed  proposals,  sec.  3 18 

sec.  5 42,44        4a 

notice  of  passage  of  resolution  of  intention,  sec.  3 25 

sec.  5 44,     56 

sec.  9 100 

Publishing  order  for  work  to  be  done,  sec.  3 9,  18,  27        3a 

Quarter  block?,  sec.  7 81 

what  are,  sec.  34,  sub.  12 188      23a 

Railroads,  street,  cost  of  work  done  between  tracks,  etc.,  sec.  7.     64        7 a 
tracks,  cost  of  improving  if  included  in  assessment,   bur- 
den of  proof  is  on  defendant,  sec.  12 158 

Ratification  of  void  assessment,  sec.  7 76 

Re-advertising,  sec.  5 43,     57        6a 

Re-assessment,  sec.  8 92 

sec.  9 99,  10 

when  may  be  made,  sec.  9 .' 99      lla 

Re-awarding,  sec.  5 43,     57        6a 

Reconstruction  by  lot  owner,  sec.  13 • 162      14a 

Record  of  notices  to  be  kept,  sec.  19 176      17a 

what  constitutes,  sec.  9 103 

Recording  assessment,  sec.  9 99,  105      lla 

certificate  of  city  engineer,  sec.  9 99,  105      lla 

certificate  of  repairs,  sec.  14 174      15a 

contract,  sec.  10 107,  1 14 

diagram,  sec.  9 .99,  105      11« 

engineer's  certificate,  sec.  9 99      lla 

return  of  warrant,  sec.  10 107,  114      12a 

warrant,  sec.  9 ..99,  105      lla 

Records  kept  by  superintendent  of  streets,  force  and  effect  of.  how 

kept,  sec.  18 '.   176      16a 

of  street  superintendent,  sec.  18 176      16a 

Recurbing,  what  property  liable  for  expense  of,  sec.  2 5        la 

sec.  25 179      18a 

References  to  other  sections  of  the  act,  refer  to  sections  of  what 

act,  sec.  34,  sub.  14 189      23a 

Regrading,  sec.  2 6 

what  property  liable  for  expense  of,  sec.  2 5        la 

sec.  25 179      18a 

Release  of  lien  of  assessment,  sec.  10 107      12a 

Reletting  contract,  sec.  5 58 

Remonstrance,  sec.  3 8,  28,  30        2a 

no  bar  to  sewers,  gutters,  manholes  culverts,  cesspools, 

crosswalks,  sidewalks  or  drainage,  sec.  24 178 

Remacadamizing,  what  property  liable  for  expense  of,  sec.  2. .       5  la 

sec.  25.  179          18a 


INDEX    TO    THE    VROOMAN 


Repair  and  reconstruct,  no  primary  duty  on  property  owner  to, 

sec.  13 , 166 

Repairs,  sec.  13 162  14a 

after  acceptance  of  streets,  sec.  20 176  17a 

and  reconstruction  by  lot  owner,  sec.  13 162  14a 

authority  of  superintendent  of  streets  to  make,  sec.  13 163  15a 

sec.  23 ....   177  18a 

cost  of,  how  collected,  sec.  14 174  15a 

fines  and  penalties   imposed   on   persons  failing  to  make, 

sec.  15 174  16a 

or  reconstruction,  certificate  of,  sec.  13 162  14a 

under  sec.  thirteen,  recording  certificate  of,  sec.  14 174  15a 

under  sec.  thirteen,  how  contractor  may  collect  for,  sec.  14  174  15a 

under  sec.  thirteen,  penalty  for  neglecting  to  make,  sec.  14  174  16a 

Repairing  streets,  paid  out  of  street  fund,  sec.  25 179  18a 

Repaved,  meaning  of,  sec.  34 188  22a 

Repaying   streets,   sec.  25 179  18a 

what  property  liable  for  expense  of,  sec.  2 5  la 

sec.  25 179  18a 

Repeal  of  conflicting  acts,  sec.  37 190  24a 

of  Vroonmn  act  of  1883,  sec.  36 190  23a 

Repiling,  what  property  liable  for  expense  of,  sec.  2 5  la 

sec.  25 179  18a 

Replanking,  sec.  2 7 

what  property  liable  for  expense  of,  sec.  2 5  la 

sec.  25 179  18a 

Report  of  commissioners  in  proceedings  to  change  grade,  filing, 

notice  of,  sec.  45 209  26a 

of  commissioners  to  assess  damages   for  change  of  grade, 

contents  of,  sec.  44 • 208  25a 

Resolution  of  construction,  sec.  3 9  3a 

Resolution  of  intention,  sec.  3 8,  19  2a 

sec.  5 44 

sec.  9 100 

of  intention,  all  kinds  of  work  included  in  one,  sec.  7 66  9a 

of  intention,  notices  of  passage  of,  sec.  3 24 

sec.  5 44,56 

sec.  9 100 

of  intention  to  be  published  and  posted,  sec.  3 8  2a 

of  intention,  posting  and  publication  of,  sec.  3 18,    20  2a 

sec.  5 44,    56 

sec.  9 100 

Return  of  warrant,  sec.  10 107  12a 

of  warrant  as  evidence  of  demand,  sec.  10 114 

of  warrant,  how  recorded,  sec.  10 ^    107  12a 

of  warrant,  recording,  sec.  10 107,  114 

Roadway,  sec.  1 2 

vSale  of  property   for  delinquent  assessments  in  proceedings  to 

change  grade,  sef.  49 211  28a 

Sealed  proposals,  notices  inviting,  sec.  5 42  4a 

Section  one 1  ltt 

scope  of 1 

Section  two ' °  * a 

two.  scope  of " 

three 8  2a 

four 37  4a 

five 42  4a 

six 61  6a 

seven. 64  /a 

seven,  sub.  1 64>  67> 


98a  STREET    WORK    LAW INDEX 

Section  seven ,  sub.  2 64,  80 

seven,  sub.  3 .64,  81 

seven ,  sub.  4 64,  82 

seven,  sub.  8  . . (>5,  83 

seven,  sub.  9 65,  84 

eight 84  10a 

nine 99  lla 

ten 107  12a 

eleven 116  13a 

twelve 141  13ct 

twelve  and  one-half. 162  14a 

thirteen 162  14a 

thirteen,  constitutionality  of • 169 

fourteen 174  15a 

fifteen 174  l(>a 

sixteen 174  16a 

seventeen 176  1  Qa 

eighteen 1 76  16a 

nineteen 176  17a 

twenty 176  17  a 

twenty-one 177  1  la 

twenty-two . . .« 177  18a 

twenty-three 177  18a 

twenty-four 178  18a 

twenty-five 179  ISa 

twenty-six 179  lOa 

twenty-seven 179  19a 

twenty-eight 185  19a 

twenty-nine 186  20a 

thirty 186  20a 

thirty-one 187  20a 

thirty-two 187  20a 

thirty-three 187  21a 

thirty-four 188  21a 

thirty-five 189  23a 

thirty-six 190  23a 

thirty-seven 190  24a 

thirty-eight 191  24a; 

thirty-eight  to  fifty-three,  constitutionality  of, 204 

thirty-nine 208  25a 

forty 208  25a 

forty-  one 208  25a 

forty-two 208  25a 

forty-three 208  25a 

forty-four 208  25a 

forty-five 209  26a 

forty-six 209  26a 

forty-seven 210  27a 

forty-eight 211  27a 

forty-nine 211  28a 

fifty 213  29a 

fifty-one 213  29a 

fifty-two 214  30a 

'  fifty-three ^ : 216  30a 

Service  of  notice  and  its  verification,  sec.  19 176  17a 

of  notice,  by  whom,  sec.  19 176  17a 

on  absent  owners,  sec.  12 142  I4a 

Severable  contract,  sec.  5 54 

Severable,  if  assessment  severable,  recovery  may  be  had  on  valid 

part,  sec.  7 78 


INDEX    TO    THE    VROOMAN    ACT  99^ 

Sewer  assessments,  sec.  27  179  iga 

Sewer  construction  and  district  assessments,  sec.  3 35  3a 

sec.  27 .".!'..'.  179  19a 

construction,    cost  of  assessed  on  a  district,  sec.  27....-  179  19« 
construction  may  be  paid  for  out  of  street  contingent  fund 

sec.  27 179  19a 

construction,  plans  and  specifications  for.   when   paid  for 

out  of  contingent  fund  or  by  issuance  of  bonds,  sec.  33,  187  20a 
construction,  special  election  to  incur  an  indebtedness  for, 

sec.  28 185  19a 

construction,   special  enabling    provisions    provided  by 

part  II  of  act 179  iga 

cost  may  be  paid  by  assessment  on  district  or  out  of  street 

contingent  fund ,  sec.  27 179  19« 

Sewers,  etc.,  cleansing,  sec.  24 178  18a 

expense  of  repairing  and  cleaning  paid  out  of  street  fund, 

sec.  25 179  18a 

etc.,  not  barred  by  objections,  sec.  3 9  2a 

not  stayed  by  written  objections  or  remonstrance,  sec.  24.  178  18a 

power  of  council  to  construct,  sec.  24 178  18a 

under  one  sidewalk,  assessments  for,  sec.  7 65  8a 

Sidewalks  not  stayed  by  objections,  sec.  24 178  18a 

powers  of  council  over,  sec.  24 178  18a 

Specifications,  sec.  3 9  3a 

sec.  5 52 

Street  contingent  fund,   may   be  used  for  sewer  construction 

sec.  27 179  19a 

department  fund,    sec.  7 64  7a 

meaning  of,    sec.  1 2 

what  includes,  sec.  34,  sub.  7 189  22a 

Streets,  damages  resulting  from  detects  in,  sec.  23 177 

what  arc  public  streets,  etc.,  sec.  1 1  la 

what  subject  to  the  jurisdiction  of  the  act,  sec.  1 1  la 

Street  railroads,  sec.  7 67 

.Street  superintendent,  appointment  of,  wrhen  none,  sec.  34,  sub.  8  189  22a 

records  of,  sec.  18 176  16a 

who  is,  sec.  34,  sub.  8 189  22a 

Street  work,  when  and  what  kinds  of  may  be  ordered,  sec.  2..  .  .       5  la 

Subdi visional  street,  crossings,  assessments  for,    sec.  7 94  8a 

Subject  matter,  jurisdiction  of,  sec.  3 14 

Sureties,  justification  of,  sec.  5 42  5a 

Suit,  sec.  12 141  13a 

by  contractor,  sec.  12 141  13a 

general  principles  of  procedure,   sec.  12 143 

lien  decreed,  sec.  12 142  14a 

service  on  absent  owners,  sec.  12 142  14a 

what  may  be  recovered  by,  sec.  12 141  13a 

warrant,  etc.,  prima  facie  evidence  of  right  to  recover,  sec. 12  142  14a 
Superintendent  of  construction,  appointment,   duties   and  com- 
pensation of,  sec.  35 189  23a 

Superintendent  of  streets,   contract  to  be  fulfilled  to  satisfaction 

of,  sec.  8 86 

authoritv  to  compel  lot  owner  to  repair   or   reconstruct, 

sec.  "13 162  14o 

bond  of,  sec.  22 177  18a 

duties  of,  sec.  21 177  17a 

sec.  22 177  18a 

office  of,  sec.  21 177  17a 

or  deputy  may  serve  notices,  sec.  19 176  17a 


STREET    WORK    LAW INDEX 

Superintendent  of  streets,  payment  to,  sec.  10 107  12a 

powers  of,  sec.  6 .     61  Ga 

records  of,  how  kept,  force  and  effect  of,   sec  18 176  16a 

to  assess  benefits  upon  lands  in  a  district,  sec.  7 66  10a 

to  execute  contract,  and  extend  time,  sec.  6 62 

to  make  assessment,  sec.  8 85,  89  10a 

Superior  Oonrt,  suit  in,  sec.  12 142  14a 

Supplementary  assessment  in  proceedings  to  change  grade,  sec. 

51 . ." 213  29a 

Tenant,  sec.  16 1 74  16a 

may  pay  assessment  for  landlord,  sec.  17 176  16a 

may  pay  the  assessment  or  may  redeem  the  property  after 

"sale,  sec.  17 " 176  16a 

Termination,  sec.  7 82 

Terminations,  assessments  for,  sec.  7 64  la 

of  alleys  or  suhdivisional  streets,  assessments  for,  sec.  7  . .     64  Sa 

Time,  extension  of,  sec.  6 61  i\a 

for  commencement  of  work,  sec.  6 61  6a 

for  completion  of  work,  sec.  6 61  6a 

within  which  to  make  assessment,  etc.,  sec.  8 92 

Treasury,  council  may  pay  cost  of  any  work  out  of,  sec.  26 179  19a 

Unaccepted  streets,  improving  after   work  in  first  instance,  sec. 

25 179  18a 

Unknown  owner,  assessment  to,  sec.  8 90 

assessment  to  in  proceedings  to  change  grade,  sec.  45 209  26a 

Vrooman  act  of  1883,  repeal  of,  sec.  36 190  23a 

Warrant,  sec.  9 99  lla 

delivery  of  to  contractor,  sec.  9 99,  105 

form  of,  sec.  9 99  lla 

omission  of  date  of,  appeal   does   not  afford  a  remedy  for, 

sec.  11 125 

prima  facie  evidence  of  right  to  recover,  sec.  12 142  14a 

recording,  sec.  9 99,  105  lla 

recording  return  of,  sec.  10 107,  114  12a 

return  of,  sec.  10 107  12a 

signing  and  countersign!  -jr,  sec.  9 99  lla 

Warrants  in  favor  of  owners  where  property  is  condemned  in 

proceedings  to  change  grade,  sec.  50 213  29a 

Watering  streets,  paid  out  of  street  fund,  sec.  25 179  18a 

Work,  petition  for,  sec.  4 37  4a 

what  kinds  of  and  when  may  be  ordered,  sec.  2 5  la 

Written  objections,  sec.  3 8,  28,  30  2a 

sec.  4 ,  .  .     37  4a 

Year,  definition  of,  sec.  34,  sub.  13 189  23a 

INDEX  TO  BOND  ACT. 

Act  takes  effect  on  passage,  sec.  9  235  36a 

Assessment  for  the  bond  is  first  lien  upon  the  lot,  sec.  4 227,  228  32a 

Assessments  less  than  $50  not  bonded,  but  collected  otherwise, 

sec.  4 228  33a 

Bond  act,  comments  upon  certain  provisions  of,  sec.  1 217 

Bond  act,  constitutionality  of,  sec.  1 220 

Bond  act  of  1891,  repealed,  sec.  8 235  36a 

Bond,  assessment  for,  is  first  lien  upon  the  lot,  sec.  4 227,  228  33a 

conclusive  evidence  of  regularity  of  all  proceedings  up  to 

listing  unpaid  assessments,  sec.  4 228  34a 

form  of,  sec.  4 227  32a 

lot  owner  may  prevent  issuance  of   by  giving   notice,  etc., 

sec.   4..                                                                                .228  33a 


INDEX  TO  THE  BOND  ACT  lOla 

Bond,  term  of,  sec.  4 227  33a 

to  be  issued  representing  amount  of  assessment  upon  each 

lot,  sec.  4 227  32a 

what  fund  payable  from,  sec.  4 227  33« 

Bonds,  conclusive  evidence  of  regularity  of  proceedings,  effect  of, 

sec.^1 ^ 219 

description  of,  must  he  in  resolution  of  intention,  resolu- 
tion ordering   the   work,  resolution  of  award,  and  all 

notices,  sec.  3 226  32rt 

features  of,  sec.  2 226  31a 

interest  and   principal  of  to  be  paid  by  coupons,  sec.  2. ...  226  31a 

payable  by  city  treasurer  from  a  fund,  sec.  2 226  31  a 

representing  cost  of  street  railway  improvement,  sec.  6. .  .  230  34a 

to  whom  payable,  sec.  4 228  34a 

Collection  of  amount  due  by  sale  as  for  taxes,  sec.  5 229  34a 

Comments  upon  certain  provisions  of  the  act,  sec.  1 217 

Conclusive   evidence  of  regularity  of  proceedings,  bond  is  up  to 

listing  unpaid  assessments,  sec.  4 228  34a 

Constitutionality  of  bond  act,  sec.  1 220 

Cost  of  work,  minimum,  sec.  2 226  31a 

Coupons,  annual  payments  by,  upon  principal  of  bond,  sec.  4.  .  .  227  33a 

interest,  and  principal  to  be  paid  by,  s?c.  2 226  31a 

for  semi-annual  interest,  sec.  4 227  33a 

Default,  upon,  lot  may  be  sold  as  for  taxes,  sec.  4 227  33a 

sec.  5 229  34a 

upon,  in   payment  of  principal  or  interest,  bond  becomes 

immediately  due  if  holder  so  demands,  sec.  5 229  34a 

Definition  of  certain  words  and  phrases  uf?ed  in  the  act,  sec.  1. .   217  31a 

Description  of   lot,  sec.  4 ~ 227  32a 

Engineer,  estimates  by,  sec.  2 226  31a 

Evidence,  bond   conclusive,  of  regularity  of  all  proceedings  up 

to  listing  unpaid  assessments,  sec.  1 219 

'  sec.  4 228  34« 

Estimates,  by  city  engineer,  sec.  2 226  31a 

Features  of  bonds,  sec.  2 226  31a 

Form  of  bond,  sec.  4 227  32a 

Fund,  what   bond  payable  from,  sec.  4 227  33a 

Interest  coupons,  sec.  4 ' 227  33a 

upon  default  in  payment  of,  bond   becomes  clue  if  holder 

demands,  sec.  5 229  34a 

Lien  of  assessment  for  the  bond.  sec.  4 227  33a 

Listing  unpaid  assessments  of  $50  or  over,  sec.  4 227  32« 

Lot,  description  of,  sec.  4 227  32a 

Minimum  cost  of  work,  sec.  2 226  31  a 

Notice  given  by  lot  owner  to  prevent  issuance  of  bond,  sec-.  4.  .  .   228  33« 

Notices,  must  contain  description  of  the  bonds,  sec.  3 226  32a 

( hvner,  by  giving  notice,  etc.,  may  prevent  issuance  of  bond,  sec.  4  228  33a 

Payments,  annual,  by  coupons  upon  principal,  sec.  4 227  33a 

of  interest  and  principal  by  coupons,  sec.  2 226  31  a 

Railroad,  improvements  by,  sec.  6 230  34a 

improvements  by,  constitutionality  of  provisiors  for,  sec.  6  231 

Register  of  city  treasurer,  sec.  2 226  31  a 

Resolution  of  award,  sec.  3 226  32a 

of  intention,  sec.  3 226  32a 

ordering  the  work,  sec.  3 226  32a 

Sale  of  lot  upon  default,  sec.  4 227  33a 

sec.  5 229  34a 

Section  one 217  31a 

two 226  31o 

three..                                                 226  32a 


102a  STREET  WORK  LAW INDEX 

Section  four 227  32a 

five 229  34a 

six 230  34a 

seven 234  3<>a 

eight 235  36a 

nine 235  3(ia 

"Street  work  act,"  meaning  of,  sec.  1 217  31a 

Treasurer,  city,  denned,  sec.  7 234  36a 

city,  to  pay  bonds  out  of  bond  fund,  sec.  2 226  31  a 

Warrant,  notice  that  bond  will  issue,  etc.,  must  be  included  in, 

sec.  3 -. 226  32a 

INDEX  TO  SHADE  TREE  A*CT. 

Act,  when  takes  effect,  sec.  14. 240 

Assessment,  sec.  9 239 

Assessments,  proceedings  to  collect,  sec.  10 2.10 

Award,  sec.  5 ' 238 

Bids,  advertising  for,  sec.  5. 237 

rejecting,  sec.  5 238 

requisites  in,  sec.  5 237 

Bond  to  accompany  contract,  sec.  6 238 

Care  of  trees,  sec.  12 240 

Certified  check,  sec.  5 238 

Collection  of  assessments,  proceedings  for,  sec.  10 240 

Contract,  sec.  5 238 

Council,  powers  of,  sec.  11 240 

Demand,  sec.  10 240 

Diagram,  sec.  9 239 

Duties  of  superintendent  of  streets,  sec.  7 238 

Election  necessary  to  bring  any  municipality  within  the  provi- 
sion of  the  act,  sec.  13 240 

Expenses  of  publication  of  notices,  etc.,  to  be  paid  before  execu- 
tion of  contract,  sec.  6 238 

Incidental  expenses  to  be  paid  before  execution  of  contract,  sec.  0  238 
Installments,  all  sums  due  to  contractor  to  be  paid  by,  sec.  8. . .  239 
Jurisdiction  to  order  work  to  be  done,  when  acquired,  sec.  4. . .  <  237 

Lien  of  assessment,  when  attaches,  sec.  9 239 

Notice  of  award,  sec.  5 238 

Notice,  posting  and  publication,  sec.  2 236 

with  specification,  posting,  sec.  5 237 

Nuisances,  powers  oi  city  council  to  condemn,  sec.  11 240 

Objection  of  owners  of  major  frontage,  sec.  3 237 

Order  for  work  to  be  done,  sec.  4 237 

Payments  of  sums  due  to  contractors,  to  be  by  installments,  sec.  8.  239 

Posting  and  publishing  notice,  sec.  2 236 

Powers  of  council  to  plant  and  maintain  shade  trees,  and  regu- 
late hedges,  sec.  1 236 

Publication  of  order  for  work  to  be  done,  sec.  4 237 

Re-advertising,  sec.  5 238 

Recording  warrant,  assessment  and  diagram,  sec.  9 239 

Re-letting,  sec.  5 238 

Resolution  of  intention,  sec.  2 236 

Section  one 236 

two 236 

three 237 

four 237 

five 237 

six..  .   238 


INDEX    TO    THE    SHADE    TREE    ACT 

Section  seven 238 

eight ^ ...'.'.'.'.'.'.'.'.'.'.'.'.  239 

nine 239 

ten 240 

eleven 240 

twelve 240 

thirteen 240 

fourteen 240 

Superintendent  of  streets,  duties  of,  sec.  7 238 

Trees,  duty  of  council  to  replace  missing  trees,  sec.  12 240 

Trimming  trees,  sec.  12 240 

Vote  of  electors  necessary  to  cause  act  to  apply  to  any  munici- 
pality, sec.  13 240 

Warrant,  sec.  9 '.  239 


INDEX  TO  STREET  OPENING  ACT  OF  1889. 

Act,  how  to  be  construed,  sec.  25 271      45a 

Assessment,  all  hind  in  district  must  be  assessed,  sec.  9 256 

commissioners  may  be  ordered  to  make  new,  sec.  14 260      40o. 

interest  of  a  railroad  in  a  street  is  subject  to,  sec.  1 252 

of  damages  to  owners  whose  property  is  taken  or  damaged, 

how  made,  sec.  9 257 

supplementary,  when  and  how  made,  sec.  20 289      43a 

when  becomes  a  lien,  sec.  15 260      40ci 

h<»\v  collected,  sec.  16 261      41a 

power  of  courts  over,  sec.  1 252 

to  hi-  madr  by  commissioners  upon  lands  in  district  in  pro- 
portion to  benefits  received,  sec.  9 256      39a 

when  delinquent,  sec.  16 261      41a 

Assessment  roll,  notice  of  receipt  of  to  be  published  by  superin- 
tendent of  streets,  sec.  16 260      40a 

Assessment  roll,  what  constitutes,  sec.  15 260      40a 

liciu'iita  to  portion  of  land  not  taken  may  be  deducted  from  the 

damages,  sec.  9 259 

Boundaries  of  assessment  district  must  be]specified  in  the  resolu- 
tion of  intention,  sec.  2 254 

Buildings,  the  benefits  accrue  to  the  lands  and  not  the  buildings, 

sec.  1 253 

Certificate  of  delinquency,  sec.  16 261      41a 

Certified  copy  of  report,  assessment  and  plat,  sec.  15 260      40a 

''City  clerk/'  who  is,  sec.  23 271      44a 

"City  council,"  what  is,  sec,  23 270      44a 

City  not  liable  for  failure  to  collect  any  assessment,  sec.  8 258      39ot 

"City  treasurer,"  who  is,  sec.  23 ." 271      44a 

"City,"  what  is,  sec.  23 270      44i 

"Clerk,"  who  is,  sec.  23 271      44a 

Collection  of  delinquent  assessments,  sec.  16 261      41a 

Commissioners,  appointment  of  and  compensation,  sec.  6 255      3Sa 

powers  of.  sec.  7 256      38a 

power  to  set  aside  assessments  by,  sec.  1 252 

Compensation  of  commissioners  part  of  the  expenses  of  the  work 

sec.  6 255      38a 

Complaint  in   action  to  condemn,  provision  regulating  form  of, 

constitutional,  sec.  18 •  •  •  •  264 

Condemnation,  in  action  for,  irregularities  in  prior  proceedings 

must  be  alleged  by  defendant  in  his  answer,  sec.  18. .  266 


104a  STREET  WORK  LAW INDEX 

Condemnation   necessary  where  private  property  is  taken r  sec.  1  250 

proceedings,  form  of  complaint  in,  sec.  18 264 

proceedings,  none  can  be  taken  until  council  has  acquired 

jurisdiction,  sec.  18 f 263 

proceedings,  when  and  how   prosecuted,  sec.  18 262      42a 

when  action  of  council  is  final  and  conclusive  of  necessity 

for,  sec.  18 264 

Constitutionality  of  street  opening  act  of  1889,  sec.  1 246 

Construction,  how  act  to  be  construed,  sec.  25 271       44a 

Conveyance  by  property  owners,  sec.  17 262      42a 

Damages,  to  land  taken  or  damaged,  amount  of  and  evidence  of, 

sec.  18 266 

Decisions  under  prior  street  opening  acts,  sec.  1 250 

Dedication,  evidence  of  not  admissible  in  action  to  condemn, 

sec.  18 264 

Deed  of  conveyance  by  property  owners,  sec.  17 262      42a 

of  street  superintendent  conclusive  evidence  of  necessity  of 
taking  or  damaging   lands,   and  of  the  correctness  of 

compensation,  sec.  16 261      41a 

of  street  superintendent  prima  facie  evidence  of  regularity, 

sec.  16 261       41a. 

Definitions,  sec.  23 270      44a 

Delinquent,  when  assessments  become,  sec.  16 261       41a 

District,  specifying  exterior  boundaries,   sec.  2   254 

whole  city  may  be  included  in,  sec.  22 270      43a 

Expense,  legislature  may  determine  how  the  expense  shall   be 

borne,  sec.  1 250 

Expenses,  incidental,  sec.  7 256      38a 

includes  compensation  of  commissioners,  sec.  6 255      38a 

what  deemed  to  be,  sec.  8 256       39a 

Fee  does  not  pass  to  city  unless  necessary,  sec.  18 263 

Hearing  objections  to  report,  sec.  14 260      40a 

Improvement,  meaning  of,  sec.  23 270      44a 

upon  a  street,  what  is,  sec.  1 244 

Incidental  ex  penses,  include  what,  sec.  7 256      38a 

Jurisdiction,  power  of  council  to  determine  its  own,  sec.  1 251 

to  order  work  to  be  done,  when  deemed  to   be  acquired, 

sec.   5 255      38a 

Lands,  the  benefits  accrue  to  and  not  to  the  buildings,  sec.  1  ...  253 

Lessee,  assessing  benefits  to,  sec.  1 253 

Lien,  when  assessment  lien  attaches,  sec.  15  .  .  . 260      40a 

Market  value,  how  proved,  sec.  18 266 

Miscellaneous  provisions  and  definitions,  sec  23 270      44a 

"Municipality,"  what  is,   sec.  23 270      44a 

Newspapers,   sec.  23 270      44a 

Notice  by  publication   that  the  superintendent  of  streets  has 

received  the  assessment  roll,  sec.  16 260      40a 

of  filing  report  and  plat  to  be  published,  sec.  13 260      40a 

of  passage  of  resolution  of  intention,   sec.  3 254      37a 

to  objectors,  sec.  14 • 260      40a 

to  property  owners  that  warrants  have  been  drawn  for 

payments,  sec.  17 262      42a 

what  necessary,   sec.  23 271      44a 

Notices,  in  what  newspapers  to  be  published,  sec.  23 270      44a 

Objections,  hearing  by  council,  sec.  5 255      38a 

in  writing  to  report  and  plat  to  be  filed,  sec.  14 260      40a 

Objections  in  writing  may  be  filed  by  interested  parties  objecting 

to  the  work  or  to  the  district,  sec.  4 254      38a 


INDEX  TO  STREET  OPENING  ACT  OF  1889.       105a 

Opening  a  street  does  not  include  ''improvement"  upon  a  street, 

and  the  act  does  not  authorize  "grading",  etc.,  sec.  1 244 

a  street,  what  is,  sec.  1 ' 243 

streets,  power  of  is  legislative  and  not  judicial,  sec.  I. '. '.'.'.  250 
Order  for  work  to  be  done,  when  jurisdiction  to  pass  deemed  to 

be  acquired,  sec.  5 255  38a 

to  do  work,  passage  of,  sec.  6 255  38a 

Outline  of  the  provisions  of  street  opening  act  of  1889,  sec.1 1 ...  241 

Owner,  benefits  accrue  to  the  owner  of  the  fee,  sec.  1 253 

Owners,  error  in  designation  of,  does  not  affect  validity  of  assess- 
ment or  of  the  condemnation,  sec.  12 260  40a 

if  unknown,  the  land  may  be  set  down  as  belonging  to 

unknown  owners,  sec.  12 260  40a 

Payment,  when  owner  is  entitled  to,  sec.  18 264 

Payments  for  land  and  improvements  taken  or  damaged,  when 

and  how  made,  sec.  17 262  42a 

to  be  paid  by  city  treasurer  upon  warrants,  sec.  8 256  39a 

sec.  16 261  41a 

Petition,  sec.  1 251 

Plat,  copy  of,,  to  be  filed  with  county  recorder,  sec.  10 259  39o 

to  accompany  report  of  commissioners,  sec.  10 259  39a 

to  be  filed  in  clerk's  office,  sec.  13 260  40a 

Powers  of  council  to  open,  extend,  widen,  straighten  or  close 

street,  sec.  1 241  37a 

Prior  acts,  proceedings  commenced  under,  may  be  continued 

under  this, "sec.  24 " 271  44a 

Proof  of  publication  and  posting,  how  made,   sec.  23 270  44a 

Publication  and  posting,  proof  of,  sec.  23 270  44a 

what   necessary,  sir.  2.15 271  44a 

Railroad's  interest   in  a  street  is   an  easement   and   subject  to 

assessment,  sec.  1 252 

Re-assessment ,  sec.  14 ...   260  40a 

Redemption  of  property  sold  for  delinquent  assessments,  sec.  16.  261  41a 

Report,  confirmation,  correction  or  modification  of,  sec.  14 260  40a 

of  commissioners  to  council,  sec.  10 259  39a 

of  commissioners,  what  must  specify,  sec.  11 .   259  39a 

to  be  filed  in  clerk's  office,  sec.  13 260  40a 

Resolution  of  intention,  sec.  2 254  37a 

notice  of  passage  of,  sec.  3 254  37« 

Sale  of  property  for  delinquent  assessments,  sec.  1(3 261  41a 

Section   one .  .  .' 241  37a 

two                                254  37a 

three..                                254  37a 

four                                 254  38a 

five                                        255  38a 

six 255  38a 

seven                                                     256  38a 

eight  .                 "            . ,      256  39a 

nine                                         256  39a 

ten                                               259  39a 

eleven 259  93a 

twelve                                     260  40a 

thirteen 260  40a 

fourteen 260  40a 

fifteen 260  40a 

sixteen 260  40a 

seventeen 262  42a 

eighteen 262  42a 

nineteen 269  43a 

twenty 269  43a 


106a  STREET  WORK  LAW INDEX 

Section  twenty-one 270      43a 

twenty-two 270      43a 

twenty-three 270      44a 

twenty-four 271      44a 

twenty-five 271      45a 

Streets,  including  more  than  one  in  one  proceeding,  sec.  1 252 

Street  opening  act  of  1889,  constitutionality  of,  sec.  1 246 

Street  opening  act  of  1889,  outline  of  provisions  of,  sec.  1 241 

Street  opening  acts  do   not  provide  for   "improvements"  upon 

existing  streets,  sec.  1 244 

Superintendent  of  streets  must  publish  notice  of  receipt  of  assess- 
ment roll.  sec.  16 260      40« 

who  is,  sec.  23 270      44« 

Supplementary  assessment,  sec.  18 262      42a 

when  and  how  made,  sec.  20 269      43a 

Surplus,  how  divided,  sec.  20 269      43a 

Title,  commissioners   to  assess  damages  have  no  jurisdiction  to 

determine,   sec.  1 251 

Treasurer,  who  is,  sec.  23 271      44a 

Value  of  land  taken,  evidence  of,  sec.  18 266 

Warrant  drawn  for  payments  for  land  or  improvements  taken 

or  damaged,  sec.  17 262      42a 

Warrants  for  payments,  contents  of,  sec.  8 256      39« 

sec.  16 261      41a 

order  of  payment  of,  sec.  19 269      43« 

out  of  what  fund  payable,  sec.  19 269      43« 

"Work,"  meaning  of,  sec/23 270      44a 


INDEX  TO  STREET  OPENING  ACT  OF  1893. 

Act  of  March  6,  1889,  limited  to  cities  of  less  than  forty  thousand 

inhabitants,  sec.  23 ." 293 

Act  to  be  liberally  construed,  sec.  24 294 

Assessment  for  grading  and  filling  lots,  sec.  9 289 

how  collected,  sec.  16 291 

how  made,  sec.  9 289 

lien,  when  attaches,  sec.  15 290 

supplementary,  when  authorized,  sec.  20 292 

when    new  assessment  ordered,  sec.  14 290 

Assessments,  when  delinquent,  sec.  16 290 

Assessment,  roll  notice  of  receipt  of  by  superintendent  of  streets 

to  be  published,  sec.  16 290 

what  is,  sec.  15 290 

Bar  to  proceedings,  if  objections  sustained,  sec.  5 287 

Board  of  audit,  report  of,  final   and   conclusive   as   to   amounts 

allowed,  sec.  22 2,)3 

who  constitute  and  duties  of,  sec.  22 293 

Board  of  public  works,  shall  constitute  the  board  of  commission- 
ers, sec.  6 288 

Boundaries  of  assessment  district,  sec.  2 287 

Certificate  of  delinquency,   sec.  16 291 

Certified  copy  of  report,  etc.,  for  warded  to  street  superintendent, 

sec.  15 290 

Cities  of  forty  thousand  inhabitants  or  over,  subject  to  provisions 

of  this  act,   sec.  1 272 

sec.  23 293 

City,  what  is,  sec.  21 293 


INDEX  TO  STREET  OPENING  ACT  OF  1893       107a 

City  attorney,  duty  to  render  services  to  commissioners,  sec.  6  288 

member  of  board  of  audit,  sec.  22 '  293 

clerk,  who  is,  sec.  21 .  293 

council,  what  is,  sec.  21 293 

treasurer,  who  is,  sec.  21 293 

Clerk,  who  is,   sec.  21 293 

Collection  of  delinquent  assessments,  sec.  16 '.  291 

Commission,  life  of  existing,  may  be  extended,  sec.  23. ........ .  293 

Commissioners,  appointment  of,  sec.  6 288 

bond  of,  sec.  6 288 

compensation  of ,  sec  6 .,....]..  288 

duties  of,  in  viewing  land,  etc.,  sec.  9 289 

office  of,  sec.  7 \'m  288 

removal  of,  sec.  6 288 

report  of.  sec.  10 289 

report  of,  what  shall  specify,  sec.  11 289 

secretary  and  clerks  to,  sec.  7 288 

Condemnation  proceedings,  when  and  how  prosecuted,  sec.  18. .  292 

Conflicting  claims  to  title,  sec.  12 289 

Construction  of  the  act  to  be  liberal,  sec.  24 294 

Constitutionality  of  the  street  opening  act  of  1893 272 

Conveyance  by  property  owners,  sec.  17 291 

Deed  of  conveyance  by  property  owners,  sec.  17 291 

Deed  of  street  superintendent  conclusive  evidence  of  necessity  of 

taking  or  damaging  lands,  etc.,  sec.  16 291 

Deed  of  street  superintendent  prima  facie  evidence  of  regularity, 

sec.  16 291 

Definitions  of  terms  used,  sec.  21 292 

Delinquent,  when  assessment  becomes,  sec.  16 290 

Expenses,  incidental,  what  included  in,  sec.  8 288 

Filing  report  and  plat,  sec.  13 290 

(Jrading  ami  filling  lots,  assessment  for,  sec.  9 289 

Hearing  objections,  sees.  4  and  5 287 

objections  to  confirmation  of  report,  sec.  14 290 

Incidental  expenses,  what  included  in,  se*c.  8 288 

Improvement,  what  is,  sec.  21 292 

Judgment  in  condemnation  proceedings,  sec,  18 292 

Jurisdiction  to  order  work,  when  deemed  acquired,  sec.  5 287 

Lien  of  assessment,  when  attaches,  sec.  15 290 

Mayor  member  of  board  of  audit,  sec.  22 293 

Miscellaneous  provisions,  sec.  21 292 

Municipality,  what  is,   sec.  21 293 

New  report,  plat  and  assessment,  sec.  14 290 

Newspapers, "what  newspaper  notices  to  be  published  in,  sec.  21  292 

Notice  of  filing  report  and  plat,  sec  13 290 

to  property  owners   that  warrants  have  been  drawn  for 

payments,  sec.  17 291 

to  objectors,  objecting  to  report,  sec.  14. . 290   . 

of  passage  of  resolution  of  intention,  posting  and  publish- 
ing, sec.  3 287 

by  publication  that  street  superintendent  has  received  the 

"assessment  roll,  sec.  16 290 

Objections  filed  by  owners  of  land  affected,  sec.  4 287 

hearing,  sec.  5 287 

if  sustained  bar  proceedings  for  twelve  months,  sec.  5. ...  287 

time  for  hearing,  sec.  4 287 

to  confirmation  of  report,  sec.  14. .  . 

Office  of  commissioners,  sec.  7 288 

Order  for  work  to  be  done,  sec.  6 288 


108a  STREET    WORK    LAW INDEX 

Payment  by  warrants,  sec.  8 289 

sec.  16 291 

for  land  and  improvements  taken  or  damaged,  when  and 

how  made,  sec.  17 291 

of  amounts  allowed  by  board  of  audit,  sec.  22 293 

Plat  showing  land  taken,  etc.,  sec.  10 289 

Powers  of  council  to  open,  extend,  widen,  straighten',  diverge, 

curve,  contract  or  close  np  any  street,  etc.,  sec.  1. ...  272 

Priority  in  warrants,  sec.  19 292 

Proof  of  publication,  sec.  21,  sub-div.  2 • 292 

Publication,  sec.  21,  sub-div.  2 292 

Recorder,  report  and  plat  when  approved  to  be  filed  with,  sec.  10.  289 
Redemption  of  property  sold  for  delinquent  assessments,  sec.  16.  291 

Report  and  plat,  filing  of,  sec.  13 .  290 

and  plat  when  approved  to  be  filed  with  recorder,  sec.  10.  289 

confirmation,  correction  or  modification  of,  sec.  14 21)0 

filing  objection  to  confirmation  of,  sec.  14 290 

of  board  of  audit,  sec.  22 293 

of  commissioners,  sec.  10 289 

of  commissioners,  what  shall  specify,  sec.  11 289 

when  new  report  ordered,  sec.  14 290 

Resolution  of  intention,  sec.  2  287 

Sale  of  property  for  delinquent  assessments,  sec.  16 291 

Section  one 272 

two 287 

three 287 

four 287 

five 287 

six 288 

seven .".. .  288 

eight 288 

nine 289 

ten 289 

eleven ' 289 

twelve 289 

thirteen 290 

fourteen 290 

fifteen 290 

sixteen 290 

seventeen 291 

eighteen 292 

nineteen 292 

twenty 292 

twenty-one 292 

twenty-two 293 

twenty-three 293 

twenty-four 294 

Street  superintendent,  who  is,  sec.  21 293 

Superintendent  of  streets  must  publish  notice  oi  receipt  of  assess- 
ment roll,  sec.  16 290 

who  is,  sec.  21 293 

Supplementary  assessment,  sec.  20 292 

Tax  collector,  member  of  board  of  audit,  sec.  22 293 

Title,  conflicting  claims  to,  sec.  12 289 

when  defective  title  acquired,  proceedings  may  be  again 
instituted,  sec.  20 292 


INDEX    TO    SANITARY    DISTRICT    ACT  109« 

Treasurer,  who  is,  sec.  21 293 

Warrants,  all  payments  to  be  by7  sec.  8 289 

see.  16 .......   291 

drawn  for  payments  for  land  or  improvements  taken  or 

damaged,  sec.  17 291 

order  of  payment  of,  sec.  19 292 

"Work",  what  is,  sec.  21 292 

INDEX  TO  SANITARY  DISTRICT  ACT. 

Act  takes  effect  immediately,  sec.  24 307 

Acts,  conflicting,   repealed,  sec.  23 307 

Assessor,  duties  of,  sec.  8 301 

election  of,  sec.  7 301 

vacancy  in  office  of,  sec.  7 301 

Assessment  list,  sec.  8 301 

sec.  11 302 

Board  of  equalization,  sanitary  board  to  sit  as,  sec.  11 302 

Bond,  election,  how  conducted,  sec.  15 304 

Bonds,  election  to  determine  whether  bonds  shall  issue,  sec.14.  304 

procmls  of  sale  of,  sec.  16 305 

sale    of,  &ec.  16 305 

when  and  how  payable  and  form  of,  sec.  16 305 

when  may  be  issued,  sec.  15 304 

Collection  of  tax.  sec.  12 303 

sec.  17 , 305 

Constitutionality  of  sanitary  district  act 295 

Dissolution  of   district,  sec.  21 307 

Distiict,  order  declaring  district  established,  sec.  4 300 

District  Attorney,  duty  of,  sec.  20 306 

Election  for  establishment  of  district,  how  conducted,  sec.  4.  ...  300 

for  establishment  of  district,  order  for,  sec.  2 300 

of  members  of  sanitary   board,  sec.  9 '. .  302 

to  deterniire  whether  bonds  shall  issue,  sec.  14 304 

to  determine  whether   bonds   shall  issue,  how  conducted, 

sec.  15 304 

Fund,  how   moneys  to  be  paid  from,  sec.  13 303 

of  sanitary  district,  sec.  13 303 

running  expense  fund,  sec.  13 303 

Lien,  sec.  11 302 

Meetings  of  sanitary  board,  sec.  10 302 

Minutes  of  sanitary*  board,  sec.  10 302 

Moneys  collected  to  be  turned  over  to  treasurer,  sec.  13 303 

how  paid  from  fund,  sec.  13 303 

Officers  of  district 301 

Order  declaring  district  established,  sec.  4 300 

for  election,  posting  and  publishing  copy  of,  sec.  3 300 

Orders  of  board  establishing  any  general  regulation  to  be  posted 

and   published,  sec.  19 306 

Petition  for  formation  of  district,  sec.  1 299 

Posting  and  publishing  copy  of  order  for  election,  sec.  3 300 

Powers  of  district,  sec.  5 .  . " 300 

of  sanitary  board,  sec.  10.  .    302 

President  of  board   must  sign  all  documents,  sec.  10 302 

ot  sanitary  board,  sec.  10 302 

Principal  and  interest  to  be  paid  within  twenty  years,  sec.  17.  ..  305 

Proceeds  of  sale  of  bonds,  sec.  16 305 

Regulations,  general,  sec.  19 306 

Repeal,  what  acts   repealed,  sec.  23 307 

Running  expense  fund,  sec.  13 303 


STREET  WORK  LAW INDEX 

Sale  of  bonds,  sec.  16 305 

of  bonds,  proceeds,  sec.  16 305 

Sanitary  board,  classification  of  members  of,  sec  9 302 

election  of  members  of,  sec.  9 302 

no  compensation  for  members  of,  sec.  9 302 

powers  of,  sec.  10 302 

to  sit  as  board  of  equalization,  sec.  11 302 

Sanitary  district  act,  constitutionality  of 295 

fund,  sec.  13 303 

Section  one 299 

two 300 

three 300 

four 300 

five 300 

six 301 

seven 301 

eight 301 

nine 302 

ten 302 

eleven 302 

twelve 303 

thirteen 303 

fourteen 304 

fifteen 304 

sixteen 305 

seventeen 305 

eighteen 306 

nineteen 306 

twenty 306 

twentv-one 307 

twenty-two 307 

twenty-three 307 

twenty-four 307 

Secretary  of  sanitary  board  must  countersign  all  documents, 

sec.  10 302 

Sewers,  cost  of,  how  borne,  sec.  22 307 

powers  of  board  to  construct,  sec.  22 307 

Signing  documents,  president  must  sign  and  secretary  counter- 
sign, sec.  10 302 

Special  proceedings  in  court  to    determine    the    right    to  issue 

bonds  and  the  validity  thereof,  sec.  18 306 

Suits  for  taxes,  sec.   12 303 

Tax,  collection  of,  sec.  17 305 

lien,  sec.  11 302 

to  pay  irterest  and  principal  of  bonds,  sec.  17 305 

when  and  how  levied,  sec.  17 305 

Taxes,  collection  of,  sec.  12 303 

suits  for  sec.  12 303 

Taxation,  rate  of,  sec.  11 302 

Vacancy  in  office  of  assessor,  sec.  7 t 301 


INDEX    TO  MUNICIPAL  INDEBTEDNESS  ACT. 

Act,  takes  effect  from  and  after  passage,  sec.   13 .* 312 

Acts,  what  repealed,  sec.  12 

Advertising  for  sealed  proposals,  sec.   10 312 

Bidder,  bond  of,  sec.  10 

Bids,  rejection  of,  sec.  10 312 


INDEX    TO    THE    MUNICIPAL    INDEBTEDNESS    ACT  Ilia 

Board  of  public  works  shall  do  and  perform  all  acts  required  to 

be  done  by  legislative  branch  of  municipality,  sec.  9. .   312 

sec.  10 312 

Bond  act  and  municipal  indebtedness  act  compared  sec.  1  309 

of  successful  bidder,  sec.  10 312 

Bonds,  form  and  character  of,  sec.  0 .311 

of  treasurer,  sec.  11 312 

place  of  payment,  sec.  7 311 

proceeds  of  sale  of,  sec.  6 '][[ ,[[.  311 

rate  of  interest,  sec.  7 311 

sale  of,  sec.  0 311 

signing  and  countersigning,  sec.  7   311 

what  vote  requisite  to  authorize  issuance  of,  sec.  3 310 

when  and  how  payable,  sec.  6  31 1 

Contracts  to  be  let  to  lowest  responsible  bidder,  sec.  10 312 

Election,  notice  of,  to  be  published,  sec.  3 310 

ordinance  calling  to  be  published,  sec.   3 310 

to  determine  whether   bonds  shall  issue,  how  conducted, 

sec.  2 310 

to  determine    whether  bonds  shall  issue,  ordinance  call- 
ing, sec.  2 310 

Engineers,  sec.  9 312 

Estimates  of  cost,  sec.  4 311 

Form  and  character  of  bonds,  sec.  6 311 

History  of  general  municipal  indebtedness  acts,  sec.  1 308 

Indebtedness,  limit  to  amount  of,  sec.  5 311 

power    of    city,   town  or  municipal  incorporation  to  incur 

for  municipal  improvement,  sec.  1 308 

Improvements,  rules  and  regulations  for  carrying  out  and  main- 
taining, sec.  9 ' 31-2 

Interest,  rate  of,  sec.  7 311 

Limit  to  amount  of  indebtedness  that  may  be    incurred,  sec.  5. .  311 

Municipal  indebtedness  act  and  bond  act  compared,  sec.  1 309 

Notice  of  special  election  to  be  published,  sec.  3 310 

Ordinance  calling  special  election  to  be  published,  sec.    3 310 

calling  a  special    election    to    determine    whether    bonds 

shall  issue,  sec.  2 310 

determining  that  the  public  interest,    etc.,    demands    the 
acquisition,  etc.,  of  any  municipal  improvements, etc., 

sec.  2 310 

publication  of,  sec.  2 310 

Payment,  place  of,  sec.  7 311 

Plans  and  estimates  of  cost,  sec.  4 311 

Power  of  city,  town  or  municipal  incorporation  to  incur  indebt- 
edness, sec.  1 308 

Proceeds  of  sale  of  bonds,  sec.  6 311 

Proposals,  sealed,  to  be  advertised  for,  sec.  10 312 

Publication  of  ordinance  determining  that    the  public    interest, 
etc.,  demands  the  acquisition,  etc.,  of    any  municipal 

improvements,  etc.,  sec.  2 310 

Rejection  of  bids,  sec.  10 312 

Repeal  of  acts  of  March  9,  1885,  March  15,  1887,  and  all  conflict- 
ing acts,  sec.  12 312 

Rules  and  regulations  for  carrying  out  and  maintaining  improve- 
ments,  sec.  9 312 

Sale  of  bonds,  sec.  6 311 

Section  one  . .  308 

two 310 

three..  310 


112a  STREET  WORK  LAW INDEX 

Section  four ;••  1 1 

five 311 

six 311 

seven 311 

eight :;il 

nine  312 

ten 312 

eleven 312 

twelve 312 

thirteen 312 

Superintendents,  sec.  9 312 

Tax  to  pay  interest  and  principal  of  bonds,  sec.  8 311 

how  levied  and  collected,  sec.  8 311 

Treasurer,  additional  bonds  of,  sec.  11 312 

Vote,  what  requisite  to  authorize  issuance  of  bonds,  sec.  3 310 

INDEX  TO  FORMS  USED  UNDER  VROOMAN  ACT  OF 
MARCH  18,  1885. 

Assessment 56a 

Award 51a 

notice  of 52a 

Bond  of  contractor 53a 

Certificate  of  record 61  a 

Change  of  grade,  ordinance  of  intention 7la 

Complaint  in  action  to  foreclose  a  street  assessment  lien 61a 

Contract r>2« 

Contractor's  bond 53« 

proposal  with  bond ... . 50a 

return 60a 

Diagram 58a 

Extension  by  superintendent  of  streets , 55a 

resolution  authorizing 55a 

Grade,  ordinance  changing  and  establishing 72a 

ordinance  of  intention  to  change • 71  a 

Notice  inviting  sealed  proposals 49a 

of  award  of  contract 52a 

of  passage  of  resolution  of  intention 48a 

of  passage,  of  ordinance  of  intention  to  change  grade 72a 

Ordinance  changing  and  establishing  grade 72a 

of  intention  to  change  grade 71a 

Order  for  work  to  be  done  ~ 48a 

Proposal  with    bond 50a 

Record,  certificate  of ' 61a 

Resolution  of  award 51a 

of  extension 55a 

of  intention 47a 

ordering  work  to  be  done 48a 

Return (>0a 

Sealed  proposals,  notice  inviting 49a 

"Warrant 59a 

INDEX  TO  FORMS  USED  UNDER  THE  BOND  ACT. 

Assessment 77a 

Award 77a 

notice  of 77a 

Certificate  of  record 78a 

Certified  list  of  unpaid  assessments •...., 78a 

Contract  and  bond 77a 


INDEX    TO    THE    MUNICIPAL    INDEBTEDNESS    ACT  113a 

Contractor's  proposal  with  bond  ..............................  76a 

return  ................................................  78a 

Diagram  .....  ----  ^  ...............  ".  ...........................  77a 

Estimates,  resolution  directing  engineer  to  furnish  .............  74a 

List  of  unpaid  assessments  ..................................  78a 

Notice  inviting  sealed  proposals,  ..............................  76a 

of  award  ..................................  -  .............  77a 

of  passage  of  resolution  of  intention  .....................  76rc 

Order  for  work  to  be  done  ....................................  76a 

Proposal  with  bond  ...........................................  76a 

Proposals,  notice  inviting  .....................................  76a 

Record,  certificate  of  ..........................................  78a 

Return  .....................................................  78a 

Resolution  directing  engineer  to  furnish  estimates  .............  74a 

of  award  ..............    ................................  77a 

of  intention  ..........................................  74rt 

ordering  the  work  ....................................  76a 

Warrant  ...................................................  77a 

INDEX  TO  FORMS  USED  UNDER  THE  STREET  OPENING 
ACT  OF  1889. 

Assessment  roll,  certificate  of  superintendent  of  streets,  at  foot 

of  ..................................................  86a 

notice  of  receipt  of  by  superintendent  of  streets  ..........  86a 

Certificate  of  city  clerk  certifying  to  copy  of  report,  etc  .........  86a 

of  superintendent  of  streets  at  foot  of  assessment  roll  .....  86a 

Notice   by   superintendent  of  streets  that  he  has  received  the 

assessment  roll  ....................................  86a 

of  filing  report  of  commissioners,   resolution  of  council 

directing  publication  of  .............................  85a 

of  filing  report  of  commissioners  with  city  clerk  ..........  85a 

of  passage  of  resolution  of  intention  .....................  80a 

Order  for  work  to  be  done  .....................................  81a 

Report  of  commissioners  .....................................  82a 

Resolution  declaring  intention  ................................  79a 

directing  clerk  to  publish  notice  of  filing  report  of  com- 
missioners .........................................  85a 

ordering  work  to  be  done  ........  .^^  .....  .  .  ^^.  .  ........   81a 


OF  THE 

UNIVERSITY 


ERRATA. 

(/.)  Through  an  oversight,  thirteen  words  were  omitted  from  the  first 
sentence  of  the  notes  to  section  7  of  the  Vrooman  act  of  March  18,  1885, 
page  67,  thus  changing  the  meaning  completely.  It  should  have  read  as 
follows  : 

Subdivision  1.  Subdivision  1  of  section  7  provides:  (1)  That  the  expense 
incurred  for  any  work  authorized  by  this  act,  and  which  is  to  be  paid  for  by 
the  front-foot  plan  of  assessment,  shall  not  include  the  cost  of  any  work  done 
in  such  portion  of  any  street  as  is  required  by  law  to  be  kept  in  order  or 
repair  by  any  person  or  company  having  railroad  tracks  thereon,  etc. 

The  words  thus  inadvertently  omitted  are  in  italics. 

(#.)  In  the  form  of  an  assessment  given  on  page  56a,  certain  words  are 
abbreviated.  In  the  manuscript  these  words  were  all  written  out  in  full, 
but  the  printer,  for  his  own  convenience  in  setting  it  up,  not  knowing  how 
particular  the  courts  have  been  where  abbreviations  have  been  used  in 
assessments,  used  abbreviation?  in  some  places.  Superintendents  of  streets 
who  do  not  wish  to  encourage  litigation  will  not  follow  the  printer's  exam- 
ple, or,  if  abbreviations  are  used,  he  will  see  that  they  are  accompanied  by 
an  explanatory  note. 


UNIVERSITY 


TO 

U.  C.  BERKELEY  LIBRARIES 


